PUNJAB NATIONAL BANK & 2 ORS vs M/S. SANT RAM HARBANS LAL

This revision is directed against the order of the Punjab State Consumer Disputes Redressal Commission, Chandigarh dated 23 September, 2013 whereby the State Commission allowed rd

the appeal preferred by the complainant, set aside the order of the District Forum, Muktsar and directed the petitioner/opposite party to pay to the respondent/complainant sum of Rs.3 Lakhs besides litigation expense Rs.15,000/-.

Briefly put facts relevant for the disposal of the revision petition are that the complainant M/s Sant Ram Harbans Lal, through its partner Harchand Kumar, filed a consumer complaint alleging that the aforesaid firm was having its current account No. 0239002100027213 with the main branch, Kaccha Ferozepur Road, Muktsar of the opposite party bank. According to the complainant the opposite party bank on 18.12.2006 made a payment of Rs.3 Lakhs against cheque No.031226 without due diligence despite of the fact that signatures of Harchand Kumar partner of the firm were forged. The complainant, on coming to know about the said unauthorised withdrawal, lodged an FIR No.70 dated 18.4.2007 with police station City Muktsar. The complainant approached the opposite party seeking refund of the money but to no avail. The complainant being aggrieved raised a consumer dispute. The opposite parties Nos. 1 to 3 filed a joint written statement. A preliminary objection was taken that the complainant had availed of services of the bank for commercial purpose and, therefore, is not a consumer. It was also pleaded that FIR No.70 dated 18.4.2007 in police station City Muktsar is still under investigation and, therefore, the complaint is pre-mature.

Learned District Forum, on consideration of the pleadings and the evidence, did not find merit in the plea of the complainant. Accordingly, the complaint was dismissed with cost of Rs.10,000/- be paid by the complainant to the petitioner opposite party.

Being aggrieved of the order of the District Forum, the respondent/ complainant preferred an appeal and the State Commission reversed the order of the District Forum holding that opposite party has committed deficiency in service by making payment against a forged cheque and directed the petitioner to pay to the respondent a sum of Rs.3.00 lakhs alongwith Rs.15,000/- as litigation expenses within 30 days of the date of the order. Being aggrieved of the impugned order, the petitioner has preferred the instant revision petition.

Learned counsel for the petitioner has contended that impugned order of the State Commission is not sustainable for the reason that State Commission has failed to appreciate that respondent complainant is not a consumer as envisaged u/s 2 (1) (d) of the Consumer Protection Act, 1986, because admittedly the services of the opposite party were hired for commercial purpose i.e. the current account of the respondent complainant opened in respect of the business of partnership firm. It is further contended that even on merits, the State Commission has faulted in appreciation of facts.

Learned counsel for the respondent has argued in support of the impugned order.

We have considered the rival contentions . First and foremost the issue raised by learned counsel for the petitioner is that the Fora below have acted without jurisdiction ignoring the fact that the respondent/complainant is not a consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act.

The term "Consumer" has been defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 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 prom-ised, 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.

On reading of the above, it is clear that the consumer is a person who buys goods or hires or avails of services for consideration. The section, however, has carved out exception to the aforesaid definition by providing that the person who buys goods or hires or avails of services for commercial purpose shall not be included in the definition of consumer. In the instant case the deficiency alleged to have been committed by the petitioner/opposite party is in relation to the current account of the business of respondent firm. Thus, it is clear case that the respondent partnership firm had hired the services of the petitioner for a commercial purpose i.e. in relation to their business account opened in the bank. Thus, in view of exception carved out in the definition itself the respondent is not included in the definition of consumer.

Learned counsel for the respondent has contended that the case of the respondent is covered under the explanation to Section 2 (1) (d) of the Act. On reading of the explanation it is clear that the explanation restricts the definition of commercial purpose by providing that commercial purpose does not include use by a person of goods bought or services availed exclusively for the purpose of earning his livelihood by means of self-employment. The user of the words "earning of his livelihood by means of self-employment" in the explanation makes it clear that the explanation carves out an exception only in respect of the natural persons. The respondent being a partnership firm, by no stretch of imagination can claim to avail of the benefit of the explanation to Section 2 (1) (d) of the Act. Thus, we do not find any merit in the contention of learned counsel for the respondent/complainant.

In view of the discussion above, it is obvious that respondent is not a consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986, as such he is not entitled to raise a consumer dispute before the consumer Fora. Both the Fora below have ignored aforesaid aspect of the case and proceeded to decide the consumer complaint without having any

jurisdiction to entertain the complaint. Therefore, the impugned order cannot be sustained. In view of the discussion above, we allow the revision petition, set aside the impugned order and dismiss the complaint with no order as to cost.