Shri.  Avinash V. Prabhune, Member –

1.                     Heard the Counsel for Complainant at length on dtd. 04.02.2021 & 08.02.2021on the issue of admission of complaint & perused the Complaint with all documents.

2.                     In the present complaint, the Complainant is the private limited company registered under Companies Act 1956 & having registered office at Plot No D-51, MIDC Area, Butibori, Dist Nagpur,  involved in the business of manufacturing & trading of packaging materials etc,.

3.                     Complainant had availed cash credit of Rs 1925 lakhs & term loan of Rs 457.05 Lakhs from OP for the business. Complainant alleged that OP’s had transferred funds of Rs 48,00,000/- on dtd 05.02.2019 from Complainant’s bank account to bank account of Laxmi Manufacturing & trading Company without consent & permission of the Complainant. Complainant further alleged that OP’s had similarly transferred funds of Rs 15,00,000/- on 31.08.2019 from Complainant’s bank in the name of M/S Santoshi Polymers, Daman, partnership firm without consent of the Complainant. Complainant further alleged that OP 1 is charging higher rate of interest @4% on account balance & stock review interest. Complainant had claimed losses under various heads to the tune of Rs 99,37,845/- & interest thereon, alleging the deficiency in services & negligence of OPs in the present complaint..

4.                     It can be seen that Complainant is in business of manufacturing & trading of packaging materials. It is noteworthy that Complainant had claimed losses under various heads to the tune of Rs 99,37,845/- so It is clear that complainant took credit facilities from the bank for the purpose of its business activities. The purpose behind taking cash credit facilities from the bank is certainly to advance and promote business activities of the company by using the funds taken from the bank. The complainant is earning profits by undertaking its business activities with the help of the loan taken by it from the bank. Therefore, it is crystal clear that the services of the bank were hired or availed by the complainant for a commercial purpose. To understand the issue more elaborately, it is necessary to refer Section 2(7)(ii) of The Consumer Protection Act 2019, which reads as under :

Section 2 (7) (ii) "consumer" means any person who—

(i)  ………

(ii) hires or avails of any service 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 service 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 service for any commercial purpose.

            In view of the above discussions & nature of transactions involved in the matter, Commission is of the firm opinion that present Complainant is not entitled to be considered as ‘Consumer’ within definition of Section 2(7) of the Consumer Protection Act 2019.

5.                     On the point of entitlement of the Complainant as ‘Consumer’ within meaning of Section 2(7) of the Consumer Protection Act, Complainant submitted judgment of the Hon NCDRC, New Delhi, “ Punjab & Sind Bank Vs Sandhu Cold Storage., Revision Petition No 2280 of 2011, decided on 09.04.2018”. Commission had perused the judgment & noticed that the issues involved in that matter were different than the present case. In the referred case before Hon NCDRC, it was not the disputed point whether respondent was consumer or not. It is settled position that the question whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. Moreover, the dispute before Hon NCDRC was mainly about the powers of Hon State Commission for recalling the order & validity of actions by the District forum in Execution proceedings. Complainant had referred another judgment in the pursis “2014 C.P.R-Page No 404 (Canara Bank Vs Mrs Vasundhara”, but not provided copy of the judgment, therefore, Commission is unable to record any findings about referred judgment.

6.                     Commission would like to refer observations of the Apex Court in the case of “Laxmi Engineering Works V/s. P.S.G. Industrial Institute, 1995 AIR 1428, 1995 SCC (3) 583,” wherein, It was categorically observed by the Apex Court that the entire Consumer protection act revolves around the consumer and is designed to protect his interest. The act provides for “business to consumer” disputes and not for “business to business” disputes. It was specifically mentioned that the act not provided for “business to business” disputes. It means it is not expected under the provisions of the act that both parties are running a business. If that is so then dispute between “business to business” is not expected to cover under the act.

7.                     It can be seen from the various judgments of Hon Supreme Court & Hon NCDRC that business entities availing services for commercial purpose were not considered as ‘Consumer’ as per the provisions of the Consumer Protection Act. In   Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a five Judges Bench, of the Honble Apex Court, held that, after the amendment of Section 2(d) of the Act w.e.f.15.03.2003, the services of the carriers, if had been availed of, for any commercial purpose, then the person availing of the services will not be a consumer.  In Birla Technologies Ltd. Vs Neutral Glass and Allied Industries Ltd.  2011 (I) SCC 525 and Sanjay D.Ghodawat Vs R.R.B. Energy Ltd. IV(2010) CPJ178(NC), a case decided by a full Bench of the Honble National Commission, similar principle of law was laid down.  In Shushma Goel Vs Punjab National Bank, 2011 CPJ 270(NC), the complaint related to the operation of bank account, maintained by a commercial entity, for commercial purpose.  It was held that the complainant did not fall within the definition of a consumer.

8.                     It is matter of records that the Consumer Protection Act 1986 was amended with effect from 15.3.2003 but the situation before amendment was different as per the original definition of consumer as given in Section 2 (1) (d) of the Act, so far as the cases pertaining to deficiency in service are concerned, there was no exception between hiring or availing of service by a person for commercial purpose or non commercial purpose.. The definition of ‘Consumer’ under Section 2(1)(d)(ii) was amended & persons availing services for commercial purpose were categorically excluded from the scope of the Act. Similar provisions were made applicable even under Section

2(7)(ii) of the Consumer Protection Act 2019.

9.

                       Hon NCDRC, New Delhi in the almost similar matter of Sidhmukh Flexible Packaging Pvt. Ltd V/s. State Bank of India, Consumer Complaint No 1047 of 2016, decided on 19.07.2016” Consumer complaint was dismissed with the observations that the complainant had availed the credit facility service of the bank for expansion of its manufacturing activity which was a commercial purpose and, therefore, the complainant cannot be considered as ‘Consumer’ within the definition of 'consumer' given in Section 2(1)(d) of the Act.

10.                   In view of the above facts & circumstances, present Complaint cannot be entertained & deserves to be dismissed, hence dismissed. However, we grant liberty to the Complainant to seek redressal of its grievance before the appropriate court/forum in accordance with the law.

ORDER

1)         Complaint is dismissed at admission stage.

 2)        Liberty is granted to complainant to seek redressal of its grievance before the appropriate court/forum in accordance with the law.

 3)        No order as to costs.

4)         Certified copy of this order be supplied to Complainant.