National Consumer Disputes Redressal
Subhash Motilal Shah (Huf) Through Lrs vs Malegaon Merchants Co-Op. Bank on 12 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2571 OF 2012 (From order dated 27.02.2012 in First Appeal No. A/10/1246 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai ) WITH I.A. No. 1 OF 2012 (Exemption from filing official translation) Subhash Motilal Shah (HUF) Dead through his LRs : 1. Smt. Mahananda S.Shah W/o Late Subhash Motilal Shah Triveni, Vardhaman Nagar Malegaon, Dist.Nashik 2. Ajay Subhash Shah S/o Late Subhash Motilal Shah 107, Tilak Road, Malegaon District Nashik 3. Sanjay S.Shah S/o Late Subhash Motilal Shah Samkeet, Near Ekata Chowk Malegaon, District Nashik 4. Vijay S.Shah S/o Late Subhash Motilal Shah Triveni Vardhaman Nagar Malegaon, District Nashik 5. Smt. Neena B.Shah D/o Late Subhash Motilal Shah 1st Floor, Chandanbala Apartment Shingada Talao, Nashik 6. Rainbow Corporation Mr.Ajay S.Shah (HUF) Through its Proprietor Mr.Ajay S.Shah R/o R.No.107, Tilak Road Malegaon, District Nashik 7. Rainbow Agencies Through its Proprietor Seema Ajay Shah Dist.Nasik Petitioners Versus Malegaon Merchants Co-op Bank Ltd. H/o Somwar Ward Mamcobhavan Malegaon Branch Malegaon District Nashik Respondent BEFORE: HONBLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioners : Mr. Sudhanshu S. Choudhary, Advocate Pronounced on_12.02.2013 O R D E R JUSTICE J.M.MALIK 1. Subhash Motilal Shah, Petitioner No.1/Complainant No.1, and subsequently represented by his LRs, Petitioner Nos. 2, 3, 4 and 5, Rainbow Corporation, Petitioner No.6/Complainant No.2, and Rainbow Agency, Petitioner No.7/Complainant No.3, filed a complaint against Malegaon Merchants Co-op. Bank Ltd., OP, before the District Forum. The complaint was dismissed and the appeal preferred by the complainants was also dismissed. Both the foras below came to the conclusion that the petitioners are not consumers, since the transaction in question relates to commercial one. 2. It was alleged that the respondent Bank was deficient in service as they honoured various cheques, which according to the complainants were cheques, not issued by the account holder, and the signatures of operating persons were forged. 3. We have heard the learned counsel for the petitioner. The State Commission was pleased to hold :- 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 (Act for brevity). 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 commission agent and business of yarn 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. 4. Learned counsel for the petitioner vehemently argued that the view taken by the State Commission is erroneous, because, even commercial transaction can be taken into consideration. He has cited a Supreme Courts authority in support of his case which is reported in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, (2000) 1 SCC 98, wherein it was held that the combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act. 5. As a matter of fact, there was amendment in the Act. By the Act No.62 of 2002, w.e.f. 15.03.2003, the said Amendment, runs as follows:- Section 2(d)(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. [Inserted by Act 62 of 2002, sec.2 (w.e.f. 15.03.2003)] 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. [Subs.by Act 62 of 2002, sec.2, for Explanation (w.e.f.15.03.2003)]. Consequently, this authority has no application to the present case. 6. The revision petition is without merit and the same is, therefore, dismissed. ...
(J. M. MALIK,J.) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER dd/3