National Consumer Disputes Redressal
Oriental Bank Of Commerce vs Shri Sushil Gulati on 5 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 225 OF 2008 (From the order dated 17.3.2008 in Consumer Case No.C-68/1998 of the State Consumer Disputes Redressal Commission, Delhi) Oriental Bank of Commerce Having its Head Office at Harsha Bhawan, E-Block, Connaught Place, New Delhi and Having amongst others, a branch at P-34, NDSE, Part II, New Delhi 110 049 through its Manager Appellant/Opp. Party (OP) Versus Shri Sushil Gulati Proprietor M/s. Tekline Communications S-241, School Block Laxmi Nagar, Shakar Pur Delhi 110 092 Respondent/Complainant BEFORE HONBLE MR.JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Appellant : Mr. H.P. Bhardwaj, Advocate For the Respondent : In person PRONOUNCED ON 5th January, 2015 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This appeal has been filed by the appellant against the order dated 17.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission) in Consumer Case No. C-68/1998 Sushil Gulati Vs. Oriental Bank of Commerce by which, complaint was partly allowed and complainant was awarded compensation of Rs.50,000/-.
2. Brief facts of the case are that complainant/respondent was proprietor of M/s. Tekline Communications and was having dealing with Punjab Co-Operative Bank Ltd. which has been now overtaken by OP/petitioner. In the year 1995, complainant was advanced a cash credit limit of Rs.3,00,000/- by the erstwhile Punjab Co-operative Bank Ltd. against pledge of batteries worth Rs.3,75,000/- and complainants wife stood as surety. Complainant was operating account regularly till 1996, but later on moratorium was placed for a period of seven months from 30.9.1996 to 01.4.1997 by Reserve Bank of India. OP allowed operation of account for the first time on 30.5.1997when two batteries were delivered against payment. On delivery, complainant found that batteries were laying in bad shape and in damaged condition. On random counting there was shortage in total number of batteries pledged. It was further alleged that on 30.8.1997 complainant took delivery of 16 batteries against payment which technically perished due to non-charging.
Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that OP called upon the complainant to regularize his account, but he failed to do so and upto 30.11.1998, complainant was liable to pay Rs.2,78,862.86 as the principal amount and Rs.1,60,899/- as interest. It was further submitted that batteries lying in the store were totally handled by complainant. Civil suit was pending between the parties and complainant does not fall within purview of consumer as transactions were for commercial purposes and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint as aforesaid against which this appeal has been filed.
3. Heard learned Counsel for the appellant and respondent in person and perused record.
4. Learned Counsel for the appellant submitted that complaint was not maintainable on account of commercial transaction as well on account of pendency of Civil suit even then learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. Perusal of impugned order reveals that in paragraph 10 of the order, learned State Commission observed as under:
10. Since civil suit is already pending between the parties as to the assessment of the actual cost of the goods pledged as well as the liability of the complainant qua the OP, we for the purpose of compensating the complainant for the deficiency in service on the part of OP in not maintaining the batteries in the same condition as these were pledged and, therefore, became of no use to the complainant and thereby complainant incurred not only loss as to the value of the batteries but also loss by way of interest against credit limit, we deem that lump sum compensation of Rs. 50,000/- shall meet the ends of justice. This compensation we are awarding as to the limited deficiency of not keeping the batteries in the same condition and also by way of interest and also because of real dispute between the parties being as to the liability of the complainant and the OP being subject to the civil suit.
6. Thus, it becomes clear that Civil suit was pending between parties in which loss to the parties was to be ascertained and in such circumstances, there was no occasion to file this complaint during pendency of Civil Suit.
7. Appellant specifically pleaded in the written statement that transaction was for commercial purpose.
Admittedly, cash credit facility was obtained by complainant for running his business. Complainant nowhere in the complaint has mentioned that he was carrying-on-business by means of self-employment for earning his livelihood.
In such circumstances, aforesaid facility falls within purview of commercial transaction and complainant does not fall within purview of consumer. This Commission in I (1991) CPJ 330 M/s. Oswal Fine Arts Vs. M/s.
HMT, Madras while dismissing complaint observed as under:
2 (i) xxxx
(ii) Another formidable objection to the maintainability of this claim is that the matter is sub judice before the Madras High Court on its original side where the complainant has instituted a suit for damages against the respondent based on the identical cause of action. There is also a cross suit filed by the respondent company in the city Civil Court at Bangalore claiming certain reliefs against the complainant in respect of the same transaction. When the matter is, thus, sub judice before the ordinary Civil Courts of the land, this Commission cannot and will not entertain any claim for compensation in respect of the identical subject matter.
(iii) There is yet another insuperable obstacle disentitling the complainant to approach this National Commission with a claim for compensation, namely, that he is not a consumer as defined in Section 2 (1)
(d) (i) of the Consumer Protection Act, 1986. Admittedly, the machinery in question was purchased by the complainant for the purpose of its use in his Oswal Fine Arts printing press which is a commercial establishment. A person who obtains goods for a commercial purpose is specifically excluded from the scope of the expression consumer by the definition contained in Section 2 (1) (d) (i).
8. In the light of aforesaid judgment, it becomes clear that complaint was not maintainable as cash credit facility was taken for commercial purpose and Civil suit was also pending between the parties. Learned State Commission committed error in allowing compensation of Rs.50,000/- without any evidence and basis and in such circumstances, impugned order is liable to set aside.
9. Consequently, appeal filed by the appellant is allowed and impugned order dated 17.03.2008 passed by the State Commission, Delhi in Consumer Case No. C-68/1998 Sushil Gulati Vs. Oriental Bank of Commerce is set aside and complaint stands dismissed with no order as to cost.
Sd/-
( K.S. CHAUDHARI, J) PRESIDING MEMBER k