National Consumer Disputes Redressal
Union Bank Of India vs Ramayan Yadav & Anr. on 5 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 220 OF 2011 (Against the Order dated 03/12/2010 in Appeal No. 460/2009 of the State Commission Uttar Pradesh) 1. UNION BANK OF INDIA Having it's Head Office at Mumbai and Branch Offices, Inter Alia Ballia Branch Ballia - 277121 Uttar Pradesh ...........Petitioner(s) Versus 1. RAMAYAN YADAV & ANR. Ballia Ballia - 277121 Uttar Pradesh 2. INTERNATIONAL TRACTORS LTD. Chuk Gunjran, Post-Piplan Wala Hoshiyarpur Punjab ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. O.P. Gaggar, Advocate For the Respondent : For the Respondent No.1 : Mr. Pawan Kumar Ray, Adv. Proxy Counsel For Mr. Sarvesh Kumar Sharma, Advocate For the Respondent No.2 : Mr. Ajay Dahiya, Advocate Dated : 05 May 2015 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission Uttar Pradesh dated 03.12.2010 in Appeal No. 460/09 whereby the State Commission while concurring with the order of the District Forum dismissed the appeal preferred by the petitioner and clarified that interest on the awarded amount shall be payable w.e.f. 11.10.2006 till the date of actual payment.
2. Learned counsel for the petitioner has assailed the impugned order on the ground that the impugned orders of the foras below are without jurisdiction for the reason that foras below have failed to appreciate that the complainant Ramayan Yadav is not a consumer as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act) and he could not have maintained the consumer complaint. It is further contended that the consumer complaint in the person name of Ramayan Yadav is not maintainable because the dealing of the petitioner bank was with the partnership firm M/s Chaudhary Motors, of which the complainant is one of the three partners. Thirdly, it is contended that grievance of the complainant is that the bank has committed deficiency in service in releasing the amount of two bank guarantees of Rs.15.00 lakh each without informing the complainant. The foras below have failed to appreciate that as per the banking law, the moment bank guarantee is invoked, the bank has no option but to honour the bank guarantee and as such, the petitioner bank by making payment of the bank guarantees to opposite party no.1 M/s International Tractors Ltd. has not committed any deficiency in service.
3. Counsel for the respondent complainant failed to put any appearance and instead Mr.Pawan Kumar Ray appeared as proxy counsel on behalf of Mr. Satya Prakash Pandey and sought adjournment on the ground that he could not appear because of some personal difficulty. On perusal of record, we find that Mr.Satya Prakash Pandey, Advocate who appeared on hearing dated 05.02.2015 is also advocate on record and his vakalatnama is available on the file. No explanation for absence of Mr.Satya Prakash Pandey has been given. Thus, we have no option but to decide the revision petition ex parte. Be that as it may, we offered to hear the proxy counsel on behalf of complainant respondent no.1 but he declined to argue and submitted that his brief was only to request for adjournment.
4. We have considered the submissions made on behalf of the petitioner and perused the record. Undisputedly, the subject cash credit account was opened in the name of the partnership firm M/s Chaudhary Motors, Ballia and that the subject bank guarantees were also issued by the petitioner bank on behalf of the partnership firm. Thus, it is obvious that if at all there is any relationship of consumer and service provider, it is between the partnership firm and the petitioner bank. Therefore, the consumer complaint could be maintained only in the name of the partnership firm and not in the personal name of the complainant Ramayan Yadav. Thus, in our view, the consumer complaint by Ramayan Yadav in his personal capacity is not maintainable.
5. Coming to the question whether the complainant is consumer for the purpose of the Act? The term "consumer" has been defined in Section 2 (1) (d) of the Act which reads as under:
(d) "consumer" means any person who--
(i) 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
(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;
6. Since the instant complaint is in respect of deficiency in service by the petitioner bank, section 2 (1) (d) (ii) is relevant. On reading of the above, it is clear that a consumer means a person who hires or avails of services for consideration whether paid or promised or partly paid or partly promised but does not include a person who avails of such service for any commercial purpose. Admittedly in the instant case, the loan account with cash credit limit of Rs.25.00 lakh and the bank guarantees in favour of M/s International Tractor Ltd. were opened by the respondent complainant in relation to the firms' business of sale of the tractors. Thus, it is obvious that services of the petitioner bank were obtained for commercial purpose. As such, the partnership firm or its partners cannot be termed as consumers as envisaged under section 2 (1) (d) (ii) of the Act. On perusal of the pleadings, it appears that respondent complainant is trying to take benefit of the explanation to the section which gives a restricted meaning to the term 'commercial purpose'. The complainant has alleged in the complaint that the partnership business is a means for earning his livelihood and to meet the need of his family. This allegation in para 1 of the complaint by no means would bring the complainant within the four corners of the explanation to Section 2 (1) (d) of the Act. Admittedly, the services of the bank were availed by the partnership firm which is not a natural person. Therefore, by no stretch of imagination it could be said that firm availed of service of the petitioner bank for earning livelihood. Thus, under the circumstances, we are of the view that respondent Ramayan Yadav cannot be termed as consumer as defined under the Act. As per section 2 (1) (b) of the Act, in case of an individual, complainant means a consumer. As respondent complainant is not a consumer, he could not have raised the consumer dispute. Both the foras below have failed to appreciate this aspect and have committed jurisdictional error in entertaining the complaint. Thus, impugned orders cannot be sustained.
7. In view of the discussion above, we allow the revision petition, set aside the impugned order and dismiss the complaint.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER