NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISIONPETITIONNO.3126OF2008
(Against the orderdated22.04.2008in Appeal No.155/2007 ofthe State Commission, Maharashtra)
HDFCBANKLTD. HAVING ITSOFFICEAT: JAJU ARCADE TARA BHAI PARK KOLHAPUR, ALSOAT : NETRAPIAPARTMENT BHANDARKAR INSTITUTE LAW COLLEGEPUNE4(MAHARASHTRA) THROUGH IT’S AUTHORISED REPRESENTATIVE
...... Petitioner
Versus
SHRI SUBODH GHANSHYAM PRABHU R/O 137, RUIKAR COLONY ‘E’WARD KOLHAPUR (MAHARASHTRA)
…...Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA,MEMBER
For the Petitioner: Mr.PunitBhalla, Advocate with Ms.ChetnaBhalla, Advocate
For the Respondent: Mr.RandhirJain, Advocate with Ms.RuchikaJain, Advocate
Pronouncedon :1stApril,2014
ORDER
PER MR. JUSTICE V.B.GUPTA,PRESIDINGMEMBER
Present revision petition has been filed under section 21(b)of theConsumer Protection Act, 1986 (short, ‘Act’) praying for setting aside order dated 22.4.2008, passed in (First Appeal No.155 of 2007) by Maharashtra State Consumer DisputesRedressalCommission, Mumbai (short, “State Commission”).
2.Respondent/complainant had filed a consumer complaint under section 12 ofthe Acton the allegations that he is having business of hardware and steel in the Kolhapur City. He is customer of Petitioner – Bank/Opposite Party.It is stated that respondent is having his loan share account with the Petitioner. Respondent had purchased shares of many well-known companies and has opened the shareMortgageAccount with the Petitioner. Further, respondent had taken loan against the said shares from the Petitioner.As per written instructions of the Petitioner, some of the shares have been sold and have maintained the said account in a proper manner.It is also stated that respondent has given the oral as well as written permission to the petitioner for selling the shares from the said account.As per fluctuations of the price of the shares in the sharemarketand due to the same, if theoverdraft facilitylimit is reduced from the specific stage, then the shares of the said amount shall be sold out in the market or the cash amount lying depositing in the said account.However, if respondent failed to maintain the said account properly, then Petitioner has the right tosellthe shares out the amount of deficit in the said account. However, petitioner had no right to sell or exchange any of the shares without the written permission of the respondent from the said account.
3.As there was sudden fall in the value of the sharesandinspiteof intimation, respondent could not maintain his account properly.Therefore, petitioner sold the shares to which respondent raised strong objection on the ground, that without proper intimation and without waiting for seven days as per terms of the contract, Petitioner sold the shares and thereby causedfinancialloss to him.
4.It is further stated that shares of Hero Honda were sold for Rs.95,212/- and shares ofGlaxoSmithklinePharmaceutical Ltd. were sold for Rs.59,820/- on 9.6.2004, as there wasshortfallin the account of the respondent.The respondent deposited additional amount of Rs.20,000/- to make the account regular.This was in response to the notice sent by the Petitioner on 17.5.2004.The petitioner sold the shares on 15.6.2004.The intimation by telegram was given to the respondent on 13.6.2004.In fact, Petitioner sold the shares within two days from the telegraphic notice. As per the contract, Petitioner was required to wait for seven days, but it did not wait for seven days and sold the shares within two days from thedateof service of telegraphic notice.This is a serious deficiency on the part of the Petitioner. With these allegations, respondent filed a complaint before District Consumer DisputesRedressalForum, Kolhapur (short, “District Forum”) with followingprayers ;
(a)That the Opposite Party – Bank has sold the shares from the share account of the complainant and owned by him of the “GalaxoSmithklinePharmaceuticals Ltd.” and “Tata Chemicals Ltd.” on 17.6.2004 and caused the loss anddamageto the complainant amounting to Rs.47,260/- be ordered to be paid by the Opposite Party – Bank to the complainant viz. Rs.47,260/- together with interest on the same at the rate of 18% per annum, being the loss caused to him.
(b)The amount of Rs.5,000/- also be ordered to be paid by the Opposite Party – Bank to the complainant towards the compensation for mental tortures and loss ;
(c)The cost of the complaint amount to Rs.1,000/- be ordered to be paid by the Opposite Party to the Complainant as he has been compelled to file the same due to fault on their part in acting illegally.”
5.The complaint was contested by the petitioner, who in itswritten statementtook the plea, that respondent had never run his account on regular basis. Respondent gave proposal of Rs.20 lakh loan on share hypothecation to the petitioner.The loan amount was sanctioned to the respondent on share market value.The respondent was well aware of the condition to makepaymentin cash or deposit amount, if the amount was in excess of theloan accountofshare market value. An agreement was reached between the petitioner and respondent on 2.8.2004.It is further stated that during May, 2004, price of hypothecated shares came down and the respondent had made use of total amount of Rs.20,19,061.31, though he had the permissible limit of Rs.18,50,000/-. Hence, the excess amount came to Rs.1,69,061.31, due to lowering price of respondent’s shares.Therefore, vide letter dated17.5.2004,it was intimated to the respondent to regularize his account.Upon this, respondent only deposited a sum of Rs.20,000/- bycheque.Hence, the petitioner sold out respondent hypothecated 200 shares of Hero HondaCompanyfor Rs.95,212/- on 9.7.2004 as also sold out 100 shares ofGlaxoSmithkleanPharmaceuticals Ltd. for Rs.59,820/- on 15.6.2004 and proceeds of these shares deposited in the account of the respondent. In the circumstances, the petitioner has not committed any default in rendering services.
6.District Forum, vide their order dated 29.12.2006, allowed the complaint and passed the followingdirections ;
“(2) Respondents Bank is directed to pay the sum of Rs.46,260/- to the complainant and interest be paid at 9% from 17.6.2004 till receipt of final payment.
(3) The Respondents Bank is directed to pay Rs.500/- towards cost of this complaint to the complainant.”
7.Aggrieved by the order of District Forum, Petitioner filed an appeal before the State Commission, which dismissed the same.
Hence, the present revision.
8.We have heard the learned counsel for the parties and gone through the record as well as written submissions filed by the respondent.
9.In support of its contentions, learned counsel for respondent has relied upon the followingjudgments ;
(i)U.BhikamchandK. &B.NirmalKumar Jain Vs. The Chief Manager, HDFC Bank Ltd., (FA No.74 of 2007) decided by this Commission and
(ii) Unit Trust of IndiaVs. Sri Shankar Das, Civil Appeal No.7604 of 2002, decided by the Apex Court on 28.4.2009.
10.The short question which arises for consideration in the present case is as to whether respondent comes within the ambit of a ‘consumer’ as defined under theConsumer ProtectionAct, 1986 (for short as‘ Act’).
11.Expression ‘consumer’ has been defined in Section 2 (1) (d) of the Act, which reads 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 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 purpose.
Explanation------For the purpose 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 ofearninghis livelihood by means of self-employment.”
12.As per averments made in Para No.1 (C) of the complaint, it is manifestly clear that respondent had been regularly trading inbusinessof shares, which read asunder ;
“(C) That the complainant has opened the share account No.1642100000471 with the opposite party No.1 Bank and the said account has been maintained and kept in a proper manner since the beginning.The complainant has withdrawn the amount credited to the said account from time to time and as and when there is deficiency, then the complainant has sold some of the shares and credited the said amount in the said account. Further, if it is needed, then the complainant has given the oral as well as written permission to the opposite party Bank for selling the shares from the said account. As per the fluctuations in the price of the shares in the share market, and due to the same, if the overdraft facility limit is reduced from the specific stage, then the shares of the said amount shall be sold out in the market or thecashamount is being deposited in the said account and maintainthe said account.But however, if the complainant has failed to maintain the said account properly thereby maintaining the balance amount, then the opposite party Bank has the right to sell the shares out the amount of deficit in the said account.However, on maintaining the said account properly keeping the balance in the said account, then the opposite party – Bank has no right to sell or exchange any of the shares without the written permission of the complainant from the said account.”
13.It is an admitted fact that respondent had availed “over draft facility” from the petitioner for Rs.20 lakhs by mortgage of shares with the Petitioner – Bank, as per Loan Agreement-Cum-Guarantee. The respondent in his written submission filed before this Commission has not specifically denied that the loan was not used for his business of selling the hardware and steel or for trading in shares.Even in his complaint filed before the District Forum, respondent has failed to mention the purpose of availing of the loan of Rs.20 lakhs. In fact, the respondent has mentioned that he is having loan share account with the petitioner and that the respondent has purchased shares of very well-known companies.He has also admitted that he is in the business of selling the hardware and steel.Nowhere in his complaint has he pleaded that the loan was taken for any purpose other than commercial.
14.Under such circumstances, the respondent would not be a consumer as per Section 2 (1) (d) (ii) of the Act.
15.Both theforabelow did not deal with the point at all as to whether respondent is a “consumer” or not.For the reasons stated above, the present revision petition is allowed and theorder passed by theforabelow areset aside.Consequently, the complaint filed by the respondent before the District Forum stands dismissed.
16.No order as to cost.
…………………..………J
(V.B. GUPTA)
(PRESIDING MEMBER)
…………………...……….
(REKHA GUPTA)
(MEMBER)
Sonia/
NATIONAL CONSUMERDISPUTESREDRESSAL COMMISSION NEW DELHI
REVISIONPETITIONNO.3947OF2011
WITH (I.A. NO.2 OF 2011, FOR C/DELAY)
(Against the order dated07.04.2011 in Complaint Case No.752/2011 ofthe State Commission,Rajasthan)
1.Unionof India Through Secretary Department of Posts DakBhawan, Sansard Marg, New Delhi
2.Assistant PostMaster HearPost Office,Sikar, DistrictSikar
3.Head PostMaster Head PostOffice,Sikar, DistrictSikar
4.Superintendent of Post Offices SikarPostal Division, Sikar
5.Chief Post Master General (Rajasthan Circle), Jaipur
...... Petitioners
Versus
AnjaniKumarAgarwal S/oChiranjiLalAgarwal R/oShyamBhawan, ‘Jaipur Road, Sikar Presently, at ShivSagar, Assam
…... Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA,MEMBER
For the Petitioner:Mr.RuchirMishra, Advocate
For the Petitioner:Mr.AmitKumarChawla, Advocate
Pronouncedon :1stApril,2014
ORDER
REKHA GUPTA
Revision Petition No.3947 of 2011 has been filed against the order dated 7.4.2011, passed by Rajasthan State Consumer DisputesRedressalCommission, Jaipur (short, “State Commission”) in First Appeal No.752 of 2011.
2.The brief factsof thecase are that the respondent/complainant had filed the present complaint against the petitioners/opposite parties for the fact that he had opened a General Provident Fund account with the petitioners at Head Post Office,Sikaron 15.5.1991 in the said account No.3300696.
3.The respondent has stated inpara– 2 in his complaint that a total amount of Rs.16,46,361/- had been deposited since the year 1991 till year 2008-2009 including interest on the deposited amount.The petitioners, for the very first time, vide letter dated 10.7.2008 bearing No.H-2/1R/08-09, called upon the respondent todeposita sum of Rs.2,99,744/- being excessinterest paidagainst excess amount deposited over and above the prescribed limit of deposit that can be made in the said account.For the period from 1995-96 to 2006-07 the said amount come to Rs.1,34,774/-. Thereafter, the petitioners illegally recovered a sum of Rs.2,99,744/- and the said fact came to the knowledge of the respondent only in 2008.This act is illegal and amounts to deficiency in service.The respondent in the year 1991 had opened the said account for the period of 15 years and thereafter, extended the same for the duration of 5 years but no objection was raised in this regard by the petitioners. After a period of 18 years, on no basis, an illegalrecoveryhad been made.The respondent became major in the year 2000 and since then, he has been operating his account No.300696. After the expiry of the period of 15 years, he took necessary steps to have the said account extended for another 5 years on 18.5.2006 and no objection was raised by the petitioners.Thereafter, after giving alegal notice, the respondent filed a complaint before the District Consumer DisputesRedressalForum,Sikar, Rajasthan (short, “District Forum”) and had prayed for recovery of Rs.2,99,744/- and alsocompensationfor mentalharassmentandfinancialloss with interest.
4.The petitioners in their reply had stated that father of the respondent had opened a PPF account No.300478 withSikarHead Post Office on 15.4.1991 in his own name and another PPF account No.300696 was opened in the name of his minor son,AnjaniKumar.That this account was also operated by the father of the respondent that till 14.11.2002, the maximum limit of deposit in the said two accounts was Rs.60,000/- and thereafter, since 15.11.2002, the maximum limit was increased to Rs.70,000/-. The respondent has deposited amount inexcessof the said limit.That the audit team of Post and Telegram Audit Office, Jaipur vide itsaudit reportdated 29.2.2007 had objected to the said fact that and indicated that the excess interest of Rs.2,29,744/-earned by the respondent against rules should be recovered and thus, Head Post Master,Sikar, caused a notice dated 11.7.2008 to be issued to the respondent.The respondent failed to deposit the said amount and therefore, in compliance of the auditreport, recovery of the said amount was made.The recovery was made in compliance of clarification 8 to Rule 3 (1) of PPF Regulations, 1968.Though,AnjaniKumar had become major on 28.12.2000 but he did not make the requisite application to allow him to operate the said account himself and thereafter, it was only on 16.12.2006 that necessary application SB-3 was presented.It was on that very day application in Form H to extend the duration of said account was presented but it was dated as 15.5.2008 thus the application in Form H presented to extend the duration for five years is not valid. Thus, they prayed that the present complaint is liable to be dismissed.