Srikishan And Company vs UNION BANK OF INDIA

THIS appeal has been filed by the appellant Co. against the order dated 26.7.2014 passed by the State consumer Disputes Redressal Commission, Chhattisgarh, Raipur whereby the State Commission has dismissed the Consumer Complaint No.CC/12/14 filed by the appellant Co. through its Proprietor Sushil Kumar Aggarwal.

BRIEFLY stated, the factual matrix leading to filing of this appeal are that the appellant firm is engaged in the business of construction contracts (Thekedari). The owner of the appellant firm is Sushil Kumar Aggarwal through whom the appellant firm filed a consumer complaint before the State Commission. It is stated that the appellant is having current account with one of the branches of the OP bank for the last 18 years and the said branch has been providing different kinds of financial facilities including Bank Guarantee Limit, Cash Credit Facility etc. to the appellant. It is further stated that the dispute in question in respect of which the present consumer complaint came to be filed pertains to one such bank guarantee amounting to Rs.25,33,500/ - issued by the OP Bank vide Bank Guarantee No. IGL 1211 dated 28.3.2011 for a period of 8 months ending on 28.8.2011. The said bank guarantee was in favour of South Eastern Coal Fields Ltd., Bilaspur and the bank guarantee holder was M/s Jagdish Construction Ltd. Incidentally, as per the averment in the complaint, the said Sushil Kumar Aggarwal is also the General Power of Attorney holder of the bank guarantee holder, namely, M/s Jagdish Construction Ltd. As per the allegation, a consumer dispute arose in respect of this bank guarantee provided by the OP Bank for which the appellant firm through its owner filed the consumer complaint in question before the State Commission which on appraisal of the evidence and hearing of the parties, dismissed the same on the ground of non -joinder of parties as well as absence of any deficiency in service or unethical practice on the part of the OP Bank. It is in these circumstances that aggrieved of the impugned order of the State Commission, the appellant Co. has filed the present appeal.

ON notice, the OP Bank contested the consumer complaint by filing its reply in which it opposed the complaint on the question of maintainability because of the non -joinder of the important parties, namely, M/s Jagdish Construction Ltd., Corba and SECL, Bilaspur. The OP Bank also opposed the complaint on merits and pleaded that the complainant/appellant has not approached the State Commission with clean hands while filing its consumer complaint because it has deliberately suppressed the true material facts. Denying any deficiency in service on its part, the OP Bank prayed for dismissal of the complaint as not maintainable. When this appeal first came up for admission hearing before us, it appeared that keeping in view the nature of transactions under dispute, the appellant/complainant would not fall in the category of a consumer as per the definition given in section 2 (1) (d) of the Consumer Protection Act, 1986 and as such its complaint itself was not maintainable before the Consumer Fora. At the request of the learned counsel for the appellant, time was granted to him to argue on the question of maintainability of the complaint itself qua the transactions in question.

WE have heard learned counsel Mr. Praveen Chaturvedi, Advocate for the appellant and perused the record. It is not under dispute that the appellant firm as well as the beneficiary firm in whose favour the bank guarantee was issued by the OP Bank are engaged in business of construction contracts (Thekedari) and it was in this connection that the services of the OP Bank were availed of by the appellant Co. and its proprietor. It is also not in dispute that both these firms are owned and represented by the same person Mr. Sushil Kumar Aggarwal. Admittedly, the appellant Co. and Mr. Sushil Kumar Aggarwal availed of the services of the OP Bank in the course of business and for commercial purposes. This being the admitted position, the appellant will not be covered by the definition of consumer qua the transactions of issuance of bank guarantee in respect of which the dispute in question seems to have arisen. In this context, the provisions of section 2 (1) (d) are relevant and may be reproduced thus: - "(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 promised, 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;]"

KEEPING in view the undisputed fact that the transactions in questions which are subject matter of the dispute were undertaken during the course of business and the services of the OP Bank were availed of for business and commercial purposes, the appellant cannot be a consumer qua these transactions and its complaint is, therefore, not maintainable before the consumer fora.

IN view of this settled legal position, we do not find any reason to interfere with the impugned order of the State Commission by which the State Commission has dismissed the complaint of the appellant Co. although on different grounds mentioned by the State Commission in its order. Since both the appellant Co. and the bank guarantee holder company are construction firms engaged in business of construction contracts (Thekedari), neither there is any averment to this effect from their side nor the plea of the services of the OP Bank having been availed of exclusively for earning of livelihood through self -employment would be available to the appellant. In the circumstances, we dismiss this appeal and also the consumer complaint of the appellant Co. on the ground that the same is not maintainable under the Consumer Protection Act. There shall be no order as to costs.