Shri.  Avinash V. Prabhune, Member –

                        Heard Ld Counsel for OP at length. Complainant & his counsel are absent since dt 19.03.2020.

1                      Opposite Party (O.P.) filed present application dtd 14.02.2019 under Section 26 of the Consumer Protection Act 1986 for dismissal of complaint alleging that Consumer had taken loans for purchasing Vehicles/Construction equipments.  The annual turnover of the Complainant was about more than 3 Crores at the time of disbursement of loan. The Complainant is purely engaged in Commercial activity. All those equipments are used for commercial purpose only, therefore, Complainant is not the consumer within meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Complaint was filed in the name of “M/s Shyam Minerals & loan was availed in the name of ‘M/s Shyam Minerals’. Moreover, Complainant had no where pleaded in the complaint that the said business is carried out for earning livelihood by way of self employment. The services availed for commercial purpose are out of the scope of The Consumer Protection Act, 1986., therefore, O.P. prayed to dismiss complaint being not maintainable, frivolous & vexatious with Costs.

2.                     Brief facts of the present complaint, as per the pleading, the Complainant has availed loan amount of Rs 45,90,000/- from Opposite party (OP) for purchasing Excavator(Hyundai Make) through Loan Agreement No I0067000530 & repaid loan amount in year 2017. Complainant had availed further loans amounting total Rs 41,50,000/ for purchasing Machineries through various loan agreements. Complainant had paid additional finance charges of Rs 7,75,200/- to OP while repaying the loan amount. Complainant had paid excess loan amount to OP but OP had not issued no objection certificate in respect of Excavator & Machineries. Complainants had filed present complaint against OP alleging unfair trade practice & deficiency in services. Complainant had claimed amount of Rs 9,75,000/ paid as extra amount by Complainant, Compensation of Rs 10,000/- for Mental & physical agony & Rs 10000/- Costs for litigation.

3.                     Complainant denied contentions of the OP & submitted that Loan is obtained for his personal use of the equipment/machinery for earning his livelihood & it cannot be considered as commercial activity. Complainant further submitted that Shyam Minerals is run by proprietor Shyamlal Lulla in his personal capacity. Complainant further submitted that he had paid principal amount & interest in excess to O.P. but OP had failed to issue No due certificate in respect of Excavator & Machineries. Complainant alleged deficiency in services & unfair trade practice committed by O.P. in the matter. Complainant prayed to allow Complaint by dismissing present application of OP.

4.                     Counsel for the OP vehemently argued that Consumer had taken loans for purchasing Vehicles/Construction equipments. All those equipments are used for commercial purpose only, therefore, Complainant cannot be considered as ‘Consumer’ within meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Complaint was filed in the name of “M/s Shyam Minerals & loan was availed in the name of ‘M/s Shyam Minerals’.  It can be seen that Complainant had availed total loan amount of about Rs 87,40,000/- through 5 loan agreement with OP.

5.         O.P. relied upon the judgments of Hon Supreme Court of India & Hon NCDRC for justifying the submissions regarding commercial activities of the Complainant. It can be seen that the complainant had not given any averments in the Complaint regarding running his commercial business for earning his livelihood; on the contrary, Complainant remained suspiciously about the activities of the Company. It can further be seen that Complainant, in reply to the present application of OP for dismissing compliant, had given averment about carrying out business for earning livelihood, which appears to be an afterthought.  Hon Supreme Court in “Laxmi Engineering Works V/s. P.S.G. Industrial Institute, 1995 AIR 1428, 1995 SCC (3) 583,” , the principal laid through illustrations referred in Hon Supreme Court judgment about purchasing auto rickshaw, truck, lathe machine by an individual & using same for earning livelihood by way of self employment with assistance of 1 or 2 persons cannot be equated for the present case in hand. In the absence of cogent evidence, mere averment given by the complainant that business carried out by him is for earning livelihood by way of self employment is certainly not sufficient to qualify present dispute as ‘Consumer to Business’ category. It can be seen that complainant is earning profits by undertaking its business activities; therefore, it is crystal clear that the purchase of Excavator & Machineries by availing loan services from OP by the complainant were for a commercial purpose.

6                      It is clear that Complainant has availed loans from OP for its business activities for commercial purpose. 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. Similarly, complaint related to the operation of Loan account, maintained by a commercial entity, for commercial purpose cannot be considered as ‘Consumer’ as per scope of The Consumer Protection Act 1986.

7                      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 provides not 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 be covered under the Act.

8.                       It can be seen from the various judgments of Hon Supreme Court & Hon NCDRC that business entities purchasing goods & 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. Hon Supreme court judgment in the “Laxmi Engineering Works Vs. P.S.G. Industrial Institute (supra) & subsequent amendment in the Consumer Protection  Act of 62 of 2002, which came into force with effect from 15.3.03. Similar provisions were made applicable even under Section 2(7)(i)(ii) of the Consumer Protection Act 2019. In view the above facts, the complainant cannot be considered as ‘Consumer’ within the definition of 'Consumer' given in Section 2(1)(d) of the Consumer Protection Act 1986 & Section 2(7) (ii) of the Consumer Protection Act 2019.

9.                       It is matter of records that Complainant had availed total loan amount of about Rs 87,40,000/- through 5 loan agreements with OP & Complainant had raised dispute regarding the services related to loan agreements. It is necessary to decide about pecuniary jurisdiction of this Commission in the matter.

10.       It is clear that as per The Consumer Protection Act, 1986, Section 11, this commission had pecuniary jurisdiction to entertain complaint where the value of goods & services and the compensation does not exceed Rs 20,00,000/-. The present complaint was filed under old Act, therefore, provisions related to jurisdiction are required to be considered as per old Act. Moreover, as per New Act, The Consumer Protection Act 2019, Section 34,     this commission had pecuniary jurisdiction to entertain complaint where the value of goods & services paid as consideration does not exceed Rs 1,00,00,000/-., now modified as Rs 50,00,000/-

11        The ratio laid down by 3 member bench of Hon NCDRC, in the matter of  ‘Ambarish Kumar Shukla & 21 Ors Vs Ferrous Infrastructure Pvt limited, 2016 SCC Online NCDRC 1117’  is as below.

Reference order dated 11.8.2016

          Issue No. (i)

It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. 

In view of the above judgment, it is necessary to consider amount of loan while deciding pecuniary jurisdiction in the present case. It is clear that Complainants had availed loan of Rs 87,40,000/- through 5 loan agreements from OP.  Moreover, as per averment in para 3 of the Complaint, Complainant had paid entire loan amount along with interest  except under Loan agreement I0067000530 & assured repayment of the said loan also in due course. All above values are certainly beyond pecuniary jurisdiction of this Commission as per Old as well as New Consumer Protection Act, 1986/2019.

12.                   In view of the above discussions, OP’s application for dismissing present Complaint deserves to be allowed, hence allowed. Consequently, Complaint is liable to be dismissed as not maintainable. However, Commission grants liberty to the Complainant to seek redressal of it’s grievance before the appropriate court/forum in accordance with the law.

ORDER

1)         OP’s Application dtd 14.02.2019 for dismissing present Complaint is allowed.

2)         Complaint is dismissed as not maintainable. 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 both parties.