Ranjana Dugar vs ICICI Bank Ltd

Aggrieved of the order of the State Commission, Delhi in Appeal No.674/2014, the petitioner / complainant has approached this Commission in revision.

Briefly put the facts relevant for the disposal of the revision petition are that petitioner filed a consumer complainant before the District Forum stating therein that she opened a securities current account with the respondent / bank and was keeping required margin as per the norms applicable to the facility, for sale and purchase of securities. It was alleged that on 07.11.2008, the respondent bank issued a letter to the petitioner / complainant demanding an amount of Rs.3,82,208/- on account of overdrawn. In continuation of said letter, another letter dated 13.11.2008 was issued to the petitioner / complainant calling upon him to deposit an amount of Rs.4,12,136/- latest by 24.11.2008.

According to the petitioner, she complied with the instructions before 24.11.2008. Apart from that, the petitioner also pledged 153 shares of Polaris Software Lab Ltd. and 8313 shares of Noida Toll Bridge Co. Ltd. with the respondent / bank. The petitioner also deposited Rs.50,000/- in the said account on 08.11.2008 and another sum of Rs.50,000/- on 15.11.2008. It was alleged in the complainant that in all complainant had deposited sum of Rs.5,12,500/- including Rs.4,12,136/- as demanded by the respondent / bank. It was alleged that al-though the complainant had deposited entire overdrawn amount, to her utter shock and surprise, the respondent / bank arbitrarily sold out the pledged shares ( additional security) in the market.

According to the petitioner, said conduct of the respondent / bank was unethical. Therefore, being aggrieved, complaint was filed in the District Forum seeking restoration of the said shares alongwith interest as well as compensation towards mental harassment.

The opposite party resisted the complaint on merits.

On consideration of evidence adduced by the parties, ld. District Forum allowed the complaint and directed the opposite party / bank to restore the value of shares sold by it on the date of sale and pay for deficiency Rs.1 lakh as compensation within 30 days, failing which also to pay interest @ 12% for the delayed period.

The opposite party / bank being aggrieved of the order of the District Forum preferred an appeal. The State Commission on hearing the parties was of the view that District Forum has acted without jurisdiction because the petitioner / complainant was not a complainant as envisaged under section 2

(1) (d) of the Act. The State Commission, therefore, allowed the appeal, set aside the order of the District Forum and dismissed the complaint.

Counsel for the petitioner submits that State Commission has exceeded its jurisdiction in entertaining the issue pertaining to locus standi of the petitioner despite of the fact that no objection under section 2 (1) (d) of the Act was taken by the respondent. The issue as to whether or not the petitioner complainant is a consumer or not is purely a legal issue. Therefore, I do not find any fault with the order of the State Commission going into the aspect of locus standi of the petitioner to maintain consumer complaint.

Counsel for the petitioner has further contended that State Commission has erred in holding that services availed by the petitioner were for commercial purpose. Expanding on the argument, learned counsel submitted that opposite party / bank was providing banking service only in which there was no commercial angle. In support of his contention, counsel for the petitioner has drawn my attention to the judgment of the Coordinate Bench of this Commission in the matter of Harsolia Motors Vs. National Ins. Co. Ltd. (2005) 1 CPJ 27 (NC).

In order to properly appreciate the contention of learned counsel for the petitioner, it would be useful to have a look on definition of ‘consumer’ as provided in section 2 (1) (d) of the Act, which is reproduced 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 a bare reading of the above, it is clear that consumer is a person who buys any goods or hires or avails of any service for consideration. The Section, however, has an inbuilt exception to the effect that if a person buys goods or hires or avails of service for any commercial purpose, said person would be excluded from the definition of consumer for the purpose of Consumer Protection Act. In the instant case, the services of the respondent / bank in the form of security current account were availed by the petitioner for commercial purpose i.e. sale and purchase of shares and securities. Therefore, in view of exception carved out in the definition itself, the petitioner cannot be termed as ‘consumer’ for the purpose of Consumer Protection Act. Consequently, the order of the State Commission cannot be faulted.

So far as judgment of the Coordinate Bench in the matter of Harsolia Motors (supra), it is suffice to say that aforesaid judgment is based upon its own peculiar facts and it related to the insurance contract.

In view of the aforesaid discussion, I do not find any material irregularity or jurisdictional error in the order passed by the State Commission.

Revision Petition is, accordingly, dismissed. However, it is clarified that this order will not come in the way of the petitioner to avail of her remedy on the same cause of action by approaching appropriate Fora having pecuniary jurisdiction.