JUSTICE V.K. JAIN (ORAL)

The complainant is a company engaged in manufacturing of apparel etc. The complainant deposited a sum of Rs.2,20,00,000/- lakhs with OP-1 Unitech Ltd. On 28.6.2013 for a period of one year. After one year, a sum of Rs.24667698/- was payable to the complainant, inclusive of interest. The aforesaid amount was after deduction of tax at source @ 10% from the interest amount. The grievance of the complainant is that though the interest amount as well as a sum of Rs.20 lakhs out of the principal amount was paid to it, the balance principal amount was not paid. The complainant is, therefore, before this Commission seeking direction to OP-1 to pay the aforesaid balance principal amount of Rs.2 crore along with interest.

2.      The OP did not file the written version despite service and, therefore, the right of the OP-1 – Unitech Ltd. to file  the written version was closed vide order dated 14.12.2016. I have heard the learned counsel for the complainant and have considered the evidence filed by the complainant on affidavit.

3.      I have questioned the learned counsel for the complainant as to whether, considering that the complainant is a company, it can be said to be a consumer as defined in section 2(1)(d) of the Consumer Protection Act. The learned counsel for the complainant has relied upon the decision of this Commission in Mumbai Metropolitan Region Development Authority Vs. Dena Bank & Ors. in C.C. No.947 of 2015 decided on 3.6.2016 where, the OP had taken such an objection in respect of a complaint instituted by Mumbai Metropolitan Region Development Authority against Dena Bank. Rejecting the contention, this Commission observed and held as under :-

“The expression ‘commercial purpose’ has not been defined in the Act and  therefore, as held herein below  by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to go by the dictionary meanings.

          “In the absence of a definition, we have to go by its ordinary meaning ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile, having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise on a large scale” (Concise Oxford Dictionary)”.

Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  It was also held by the Hon’ble Supreme Court in Laxmi Engineering Works (supra) that what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to.  The same would be equally applicable to for hiring or availing services.

6.      If a Corporation or an Undertaking of the Government has surplus funds available with it for a short period, it would not like to keep such funds idle and would like to invest them, in such a manner that it is able to get adequate return on such investment.  Earning interest by temporary deployment the surplus funds in a bank is altogether different from business activities such as manufacturing, trading or rendering services.  The complainant in Consumer Complaint No. 259 of 2014 namely Maharashtra Tourism Development Corporation is engaged primarily in development of tourism in Maharashtra, whereas Mumbai Metropolitan Region Development Authority, complainant in Consumer Complaint No. 947 of 2015 is an Authority, constituted under the provisions of the MMRDA Act, 1875 and focuses primarily on infrastructure development of the Mumbai Metropolitan Region.  The main source of income of MMRDA is the sale of land for development. Neither of these complainants is a finance company or otherwise engaged in the business of the collecting and deploying funds.  Therefore, it cannot be said that the surplus funds were invested by them with the bank as a part of their respective business activities or to promote, advance or facilitate such activities.  Therefore, it would be difficult to say that the said deployment of funds was made for a commercial purpose.”

4.      Though the complainant is a private company and not an undertaking of the government, the fact remains that as is evident from its Memorandum and Articles of Association, its main objective to carry on business as manufacturers,  processors, dealers, contractors, etc. for any or all varieties of silks, artificial silks, synthetics, polyster, nyloen, cotton etc. Earning profit by way of investment of money is not a primary objective of the complainant though as an object incidental or ancillary to the attainment of the main objects, the company is authorized to entrust the funds not immediately required, in land, building and through negotiable instruments etc. A reference in this regard can be made to clause B (1) of the Memorandum and Articles of Association of the complainant. Therefore, relying upon the decision of this Commission in Mumbai Metropolitan Region Development Authority (supra), I hold that the complainant would be a consumer qua the opposite party in respect of the money it had deposited by way of an FDR with the opposite party.

4.      Since the opposite party has not refunded the balance principal amount of Rs.2 crore and has also not paid interest on that amount after its maturity, the complainant is entitled to the aforesaid amount. The complaint is, therefore, disposed of with the following directions:-

(i)      The OP Unitech Ltd. shall refund the principal amount of Rs.2 crore to the complainant.

(ii)      The OP shall pay compensation in the form of interest @ 9% p.a. on the aforesaid amount of Rs.2 crore w.e.f. the date of maturity till the date on which the principal amount along with compensation in the form of simple interest in terms of this order is paid.

(iii)     The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.

(iv)    The payment in terms of this order shall be made within three months.