ORDER (ORAL) 1. The complainant availed cash credit limit of Rs.8 crore, term loan of 32.75 lakh, second term loan 150 lakh and WCTL of Rs.150 lakh making an aggregate of Rs.1133.39 lacs from the opposite party namely Indusind Bank Ltd. The said credit facilities were sanctioned vide letter dated 6.10.2017. The grievance of the complainant, which is a private limited company, is that the opposite party has made unjustified deductions of Rs.3,52,189/- towards GST and Rs.1,956,605/- towards foreclosure charges/processing fee in the statement of account sent to the complainant. The account of the complainant is stated to have been frozen by the bank. Alleging deficiency on the part of the bank in rendering services to it, the complainant is before this commission with the following prayers : -2- Relief in favour of complainant and thereupon opposite parties as such liable to pay Foreclosure charges/processing fee for BBG of Rs.1,956,605/- and thereafter Tax Invoice on deducted amount, comes and showed as amount of Rs.23,08,793.90/- and over this amount of GST Rs.3,52,189/- alongwith future and pendente-lite interest @ 18% against O.P.s. Relief in favour of Complainant and thereupon opposite parties as such liable to pay a sum of Rs.10,00,000/- for undue harassment, mental agony, and is also liable to pay costs of Rs.2,00,000/- for the present complaint.
2. I have heard the learned counsel for the complainant on the question as to whether complainant can be said to be a consumer or not. 3. The term ‘consumer’ has been defined in Section 2(1) (d) of the Consumer Protection Act, which to the extent it is relevant for the purpose of this petition means a person who buys goods or hires or avails services for consideration but does not include a person who obtains goods for resale or who purchases goods or avails services for any commercial purpose. As per the explanation, inserted with effect from 15.3.2003, for the purpose of the above referred clause, commercial purpose does not include use of the goods or services exclusively for the purpose of the earning livelihood by means of self-employment. 4. The issue involved in this complaint came to be considered by this Commission in West Fort Hi-Tech Hospital Limited –vs- Punjab National -3- Bank decided on 7.1.2020 in FA No.1264 of 2018 and the following view was taken: ‘The term ‘Consumer’ used in Section 2(1)(d) of the Consumer Protection Act came up for consideration of this Commission in Revision Petition No.2833 of 2018 decided on 06.01.2020 and after considering several decisions on the issue, including Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Company Ltd. I (1991) CPJ, 499 (NC), Cheema Engineering Services Vs. Rajan Singh (1997) 1 SCC 131, Madan Kumar Singh (Dead) through L.R. Vs. District Magistrate, Sultanpur & Ors. (2009) 9 SCC 79 and Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors. (2018) 14 SCC 81, the larger Bench inter-alia held as under: (a) Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer; (b) There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities. -4- (c) What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities. 5. It would thus be seen that a person engaged in large scale commercial activities intended to make profit, is not a consumer and what is crucial for the purpose of deciding whether a person is a consumer or not is the purpose of which the goods are purchased or the services are hired or availed, as the case may be. 6. The complainant/appellant hired the services of the respondent Punjab National Bank by opening a current account with the said bank and availing term loan, overdraft facility and Cash Credit facility. Admittedly, the Overdraft facility and the Cash Credit facility were linked to the current account which the appellant company had opened with the respondent Punjab National Bank. It is also not in dispute that the cheques dishonoured by the bank, were issued from the said current account. Similarly, it is also not in dispute that the transfers and debits subject matter of the Consumer Complaint, were also made from the current account which the appellant company had opened with Punjab National Bank and to which the Overdraft facility and Cash Credit facility had been linked. Since the bank account was opened and the Overdraft facility as well as the Cash Credit facility were availed by the complainant company for the purpose of its business of running a multi-specialty hospital, it can hardly be disputed that the services of the respondent bank were hired or availed by the appellant for its commercial purpose. Therefore, the complainant company cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. 7. The learned counsel for the appellant has referred to the decision of this Commission in State Bank of India Vs. U.P. Cooperative Federation Ltd. and Others First Appeal No.826 of 2015, decided on 23.04.2019. The aforesaid decision however, is not applicable at all to the present case which pertains to the deficiencies alleged in the services hired by a company for the purpose of running its business. The learned counsel for the complainant/appellant also refers to the decision of this Commission in FA No.42 of 2014 M/s Metco Export International Vs. Federal Bank Ltd. & Ors. decided on 06.02.2018. The aforesaid decision also would be of no avail to the complainant, which is a company which had hired the services of the respondent purely for a commercial purpose. On the other hand, the question as to whether a company taking credit facility from a bank can be said to be a consumer within the meaning of the C.P. Act has come up for consideration of this -5- Commission in several decisions including Revision Petition No.1750 of 2017 – Union Bank of India & Anr. Vs. M/s Learning Spiral Pvt. Ltd. & Ors., decided on 30.7.2018 and the following was the view taken by this Commission:- If the business activities of a company cannot be conveniently undertaken without the goods purchased or the services hired or availed by a company, such purchase or hiring/availing as the case may be, would be for a commercial purpose, because the objective behind such purchase of goods or hiring or availing of the services would be to enable the company to earn profits by undertaking and advancing its business activities. 6. In Subhash Motilal Shah & Ors. Vs. Malegaon Merchants Co.-op Bank Ltd., R.P.No.2571 of 2012 decided on 12-02-2013, the petitioner which had a current account with the bank had alleged deficiency in service on the part of the bank. The State Commission dismissed the complaint, holding inter alia as under: "Admittedly, since Rainbow Corporation is a firm of Ajay Subhash Shah (HUF), i.e., juristic 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". Being aggrieved from the order of the State Commission, the complainant in the said case approached this Commission by way of a revision petition and it was contended by the complainant that considering the aims and objectives behind enactment of the Act, the expression -6- 'consumer' and 'service' as defined under the Act should be construed in a comprehensive manner so as to include the services of commercial and trade oriented nature. In other words, the contention was that any person who hires services for consideration shall be deemed to be a consumer, even if the services were obtained in connection with a commercial activity. However, relying upon the amendment made in the Act with effect from 15-03-2003 the revision petition was dismissed by this Commission thereby upholding the view taken by the State Commission. 7. In M/s. Sam Fine O Chem Limited Vs. Union Bank of India, C.C.No.39 of 2013, decided on 12-04-2013, the complainant had availed credit facility from Union Bank of India. Alleging deficiency in the services provided by the bank he preferred a complaint before this Commission. Rejecting the complaint this Commission inter alia noted 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 did not fall within the definition of 'consumer' given in Section 2(1) (d) of the Act. In CC No.11 of 2007, Samkit Art & Craft Pvt. Ltd. Vs. State Bank of India & Ors., decided on 14-10-2014, the complainant which was engaged in the business of export had obtained cash credit limit and term loan facility from the State Bank of India. He filed a complaint alleging deficiency on the part of the bank in the services rendered to him. It was held by this Commission that obtaining cash credit facility for the purpose of export of goods was a commercial purpose and, therefore, the complainant company was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. 5. The complainant being a private company even the benefit of the explanation below Section 2 (1) (d) of the Consumer Protection Act is not available to it, though even otherwise the benefit of the said provision has not been claimed by it. The credit facilities were taken by the complainant from the bank for the purpose of its business activities. The amount which the complainant took from the bank was to be used to serve the commercial interest of the company. Therefore, there is no scope for -7- disputing that the services of the bank were availed by the complainant for commercial purpose. 6. For the reasons stated herein above, the complaint is dismissed with liberty to the complainant to avail such remedy other than a consumer complaint, as may be open to it in law. | 
