R.S. Sharma, President

1. This appeal is directed against the order dated 16.2.2018, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth “District Forum”) in Complaint Case No. 271/2016. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that:

(1) The OPs Company will not adjust any amount without written consent of the complainant from the amount of refinance i.e. Rs. 8,00,000 and will deposit the remaining amount Rs. 3,31,194 with amount of interest recovered from the account of the complainant within period of one month.

(2) The OPs Company will pay a sum of Rs. 1,50,000 (Rupees one lakh fifty thousand) towards compensation for mental agony, to the complainant.

(3) The OPs Company will pay a sum of Rs. 5,000 (Rupees five thousand) towards cost of litigation to the complainant.

2. Briefly stated the facts of the complaint of the complainant are that the complainant is earning his livelihood by means of self-employment by plying J.C.B. Machine. The OPs is a finance company, which is providing finance facility for purchasing heavy vehicle. The complainant had earlier obtained loan from the OPs as per his requirement. In the month of November 2015, the complainant contacted to the O.P. No. 2 and requested to provide loan of Rs. 12,00,000 for purchasing JCB 3DX Backhoc Loader. The O.P. No. 2 accepted the request of the complainant and give consent for sanctioning loan of Rs. 12,00,000. After one month of the request made by the complainant for providing loan, the Finance Company took action and on 22.12.2015 got signatures of the complainant on various documents, but the Finance Company sanctioned loan of Rs. 8,00,000 to the complainant and out of the sanctioned loan of Rs. 8,00,000, only a sum of Rs. 4,66,806 was provided and the above amount was deposited in the bank account of the complainant on 6.1.2016. The O.P. No. 2 sanctioned only Rs. 4,66,806 but calculated the interest on Rs. 8,00,000. The O.P. by showing that amount of Rs. 8,00,000 was sanctioned to the complainant a loan, and obtained 34 cheque bearing No. 843856 to 843989 of Rs. 32,100 per month from the complainant towards security. The O.P. without giving loan of Rs. 8,00,000 to the complainant, charged interest on Rs. 8,00,000 for 36 months and gave intimation to the complainant that a sum of Rs. 10,91,400 is outstanding against the complainant @ Rs. 32,100 per month. The loan was sanctioned for 34 months but the interest was calculated by the Finance Company for 36 months and the same was added in the loan amount, which is contrary to law and rules. The loan of Rs. 8,00,000 was sanctioned by the O.P. No. 2 but only a sum of Rs. 4,66,806 was deposited in the account of the complainant and remaining amount was not deposited by the O.P. in the account of the complainant till date. The O.P. instead of calculating interest on Rs. 4,66,806, calculated the interest on Rs. 8,00,000 and added interest for 36 months and the payable amount became Rs. 10,91,400 which is deficiency in service on the part of the O.P. Due to not sanctioning Rs. 8,00,000 by the O.P. to the complainant, the complainant could not purchase JCB 3DX BACKhoc Loader due to which he suffered loss of Rs. 2,00,000 per month. The complainant suffered mental agony. The complainant requested the O.P. to pay remaining amount of Rs. 3,33,198, but O.P. did not given attention to the request of the complainant. The O.P. committed deficiency in service. Hence, the complainant filed the instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.

3. The OPs have filed their written statement and averred that the complainant purchased the machine for commercial use, therefore, the complainant does not come in the category of consumer. The complainant could not deposit the instalment, therefore, on the request of the complainant, the machine was financed twice. The amount of Rs. 8,00,000 mentioned in para 2 of the complaint was refinanced on the request of the complainant. The above loan was received by the complainant on the basis of the condition of the machine and on the basis of financed amount which was repaid by the complainant The First Loan Agreement No. 18688 was executed and the amount was given to the complainant on 1.2.2012 to the tune of Rs. 22,50,000 which was to be ended on 15.11.2015, but the complainant could not pay the same in time and he defaulted in making payment of two instalments. The complainant executed agreement with the OPs and obtained loan of Rs. 8,00,000 on the same vehicle, under refinance on 22.12.2015, the second loan agreement is No. is 99482. The complainant continuously defaulted in making payment, therefore from the amount of refinance, the amount of default was adjusted and the balance amount was deposited in his account. On 1.2.2012, under Agreement No. 18688 the complainant took loan of Rs. 22,50,000 which was for 45 months and was to be ended on 15.11.2015, but the complainant could not pay the previous loan in time and two instalments are outstanding to the tune of Rs. 1,07,800. The O.D. charges was Rs. 1,88,600, cheque bounce charges Rs. 26,882 and other legal expenses was Rs. 44,500. Thus, in lieu of total Rs. 3,67,782, at the time of sanctioning new loan, discount was given in D.C. charges and after giving discount, O.D. charges of Rs. 1,24,011, cheque bouncing charges Rs. 13,441 and other legal charges Rs. 44,500 were taken. Thus total amount of Rs. 2,89,752 only was taken. For first insurance Rs. 12,000, management fee Rs. 16,000 and valuation charges Rs. 2,596 were taken. The amount of additional deduction is Rs. 43,442 .A sum of Rs. 4,66,806 was deposited in the account of the complainant. In the complaint, the complainant did not mention the date of agreement and its registration No. 1, which was executed between the parties for purchasing the machine. The complainant is not paying the monthly instalments, due to which overdues was increased. On being continuously default made by the complainant, the OPs demanded the amount instalments, then the complainant informed that there is deflation in business and anticipated cooperation of the OPs. The OPs told the complainant that the Company is providing refinance facility on the machine/vehicle which was already financed. There is special scheme and there is possibility to provide financial assistance to the tune of Rs. 8,00,000. The complainant gave his consent and completed the formalities. The overdues and the default in making instalments were deducted and balance amount of Rs. 4,66,806 was deposited in the account of the complainant. The complainant is a contractor by profession. The complainant is also having a goods vehicle regarding which he mentioned in his income tax return. The complainant is using the J.C.B. Machine for his contract work for earning profit, therefore, he does not come in the category of consumer. The complainant is a businessman, who purchased the J.C.B. Machine with the financial assistance of the OPs for expansion of his business. The complainant had purchased new machine on 14.6.2012 for which agreement was executed. The complainant suppressed this fact. The Finance Company is providing loan to borrower by looking his profile and it is the discretion of the Finance Company. The complainant was aware of the above facts and he was eligible for only Rs. 8,00,000. The due instalments and overdues and other expenses in respect of the first agreement, was adjusted and remaining amount was deposited in the account of the complainant regarding which the complainant had given his consent. The OPs had given loan of Rs. 8,00,000 by refinance and as per law the interest is taking on amount which was to be recovered from the complainant. When the complainant committed default in making payment of the instalments, the OPs gave notice to the complainant regularly even then he was avoiding to make payment of the instalment and is making false averment that without giving notice to him, the OPs repossessed the machine. The OPs did not commit any deficiency in service. According to Clause 9.11 of the agreement if any dispute arises between the parties, then there is provision for settlement of dispute through arbitration, but the complainant has filed the complaint before the different Forum, therefore, the District Forum has no jurisdiction to hear the complaint and the complaint is liable to be dismissed with cost. The complainant was paid the amount of Rs. 8,00,000 according to the second agreement and for repayment of the same, he voluntarily provided cheques, otherwise on 22.12.2015 when the agreement was executed between the parties, thereafter he was required to raise objection but with afterthought to escape to pay the instalment with interest, he filed false and frivolous complaint. The J.C.B. was got refinanced by the complainant, but with mala fide intention he did not disclose the same in the complaint. The complainant has not made repayment of the financed amount as per the terms and conditions of the agreement, therefore, the OPs are free to take action against the complainant according to the agreement. The complainant defaulted in making payment according to the agreement, therefore, for security of the amount of loan, the OPs repossessed the vehicle, which is mentioned in Clause 9.8 of the agreement. The complainant averred that he is a consumer, but he did not file driving licence before the District Forum. The complainant did not come before the District Forum with clean hands, therefore, the complaint is liable to be dismissed with cost.

4. The complainant has filed documents. The documents are pay in slip dated 6.2.2012 issued by Srei Equipment Fin. Pvt. Ltd., Money Receipts issued by the Srei Equipment Finance Private Ltd. to the complainant on various dates, copy of bank pass book, copy of complaint made by the complainant to Officer Incharge, Masturi, District Bilaspur (C.G.), Police Hastakshep—aygya apradh ki suchna, letter dated 14.2.2017 sent by Mr. Zafrul Islam, Advocate to the complainant, letter dated 7.3.2017 sent by SKR and Associates, Advocates to the complainant and Chandrika Bai.

5. The OPs have filed documents. The documents are letters dated 9.3.2017, 11.2.2017, 14.1.2017 sent by the OPs to the complainant, letters dated 11.11.2016 and 8.10.2016 sent by the OPs to the complainant, agreement dated 22.12.2015, Certificate of Registration, Receipt of Tax, agreement dated 14.6.2012, acknowledgement of filing of income tax return, certificate of registration, etc.

6. Learned District Forum, after having considered the material placed before it by both the parties, has allowed the complaint of the complainant and directed the OPs to pay the amounts to the complainant, as mentioned in para 1 of this order.

7. Mr. Yashwant Yadav, learned Counsel appearing for the appellants (OPs) has argued that the respondent (complainant) had purchased the JCB Machine for the commercial purpose. The complainant is doing contract business and the JCB Machine was being used by the complainant for the contract work, therefore, the complainant does not come in the category of the consumer. On being request made by the complainant, the OP financed the loan to the complainant twice. The amount of Rs. 8,00,000 mentioned in para 2 of the complaint was refinanced by the OPs on the request of the complainant. For the first loan, agreement was executed by the complainant on 1.2.2012 for Rs. 22,50,000, but the complainant could not pay the instalments in time and he defaulted in making payment of the instalments. The complainant again executed an agreement and obtained loan of Rs. 8,00,000 in respect of the same vehicle. The complainant continuously defaulted in making payment of instalments, therefore from the amount of refinance, the amount of default was adjusted and the balance amount was deposited in his account. Two instalments are outstanding to the tune of Rs. 1,07,800. The O.D. charges was Rs. 1,88,600. The complainant gave cheque to the OPs, which was bounced. The cheque bouncing charges due is Rs. 26,882 and other legal expenses due is Rs. 44,500. The total amount of Rs. 4,66,806 was deposited in the account of the complainant. On being continuously defaulted by the complainant in making payment of the instalments, the OPs demanded to the complainant the amount of installments, then the complainant informed that there is deflation in the business and he anticipated cooperation of the OPs. The complainant gave his consent and completed all formalities, even then the complainant defaulted in making payment of the instalments. The complainant was using the JCB Machine in his contract work for earning profit. The OPs gave notice to the complainant regularly, even then the complainant avoided to make payment of the instalment, therefore, for security of the amount of loan, the OPs repossessed the vehicle, which is mentioned in Clause 9.8 of the agreement. In the agreement executed between the parties, there is Arbitration Clause, therefore, it is essential for the OPs to refer the matter to the Arbitrator and District Forum has no jurisdiction to take cognizance in the complaint. The OPs did not commit any deficiency in service. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellants (OPs) may be allowed and the impugned order may be set aside.

8. None appeared for the respondent (complainant) before us on 22.6.2018 when the case is fixed for final hearing.

9. We have heard learned Counsel appearing for the appellants (OPs) and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.

10. According to the appellants (OPs), in the agreement executed between the parties, there is existence of Arbitration Clause, therefore, the District Forum, Bilaspur (C.G.) has no jurisdiction to take cognizance in the complaint. The above contention of the OPs, is not acceptable. Merely mentioning of Arbitration Clause in the agreement, does not bar the jurisdiction of this Commission.

11. Section 3 of the Consumer Protection Act, 1986 runs thus:

“3. Act not in derogation of any other law—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

12. In Aftab Singh & Others v. Emaar MGF Land Limited & Anr., III (2017) CPJ 270 (NC), Hon’ble National Commission has observed thus:

“52. In view of the aforegoing discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactmencts, established for specific public purpose to subserve a particular public policy are not arbitrable; (ii) there are vast domins of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon’ble Supreme Court; (iv) Section 2(3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (v) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended Sub-section (1) of Section 8 cannot be construed as a mandete to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.”

13. In Satish Kumar Pandey & Ors. v. Unitech Ltd., III (2015) CPJ 440 (NC), Hon’ble National Commission has observed thus:

“18. ……………..As Provided in Section 3 of the Consumer Protection Act, the provisions of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a Consumer Forum in a case of deficiency in the services rendered to him by the service provider or adoption of Unfair Trade Practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation v. Madhusudhan Reddy & Anr., II (2012) SLT 51= I (2012) CPJ 1 (SC)= (2012) 2 SCC 506, and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C. P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the Consumer Fora would be maintainable despite their being an Arbitration Clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. v. Mridul Estate Pvt. Ltd., R.P. No. 412 of 2011, decided on 13.5.2013, the aforesaid contention advanced by the learned Counsel for the opposite party is liable to be rejected.”

14. In DLF Limited v. Mridul Estates (Pvt.) Ltd., III (2013) CPJ 439 (NC), Hon’ble National Commission has observed thus:

“(i) Consumer Protection Act, 1986—Sections 3, 21(b)—Arbitration and Conciliation Act, 1996—Section 8—Jurisdiction—Valid Arbitration Agreement—Reference of dispute— Maintainability of complaint— Complaint filed by a consumer under C.P. Act would be maintainable and relief cannot be denied by invoking jurisdiction of Section 8 of Arbitration Act, 1986—Remedy provided under CP Act is a special remedy with objective of redressal of grievances of affected consumers in expeditious and non-expensive manner—If small consumers are relegated to Alternative Dispute Resolution (ADR) mechanism of arbitration, remedy provided under CP Act would become illusionary—Consumer Fora are not bound to refer dispute raised in complaint on application filed under Section 8 of Arbitration Act, 1996 seeking reference of dispute to Arbitral Tribunal in terms of valid Arbitration Clause in agreement entered into between parties.”

15. In Navin Khanna (Dr.) & Ors. v. Unitech Reliable Projects Pvt. Ltd. & Anr., III (2016) CPJ 203 (NC), Hon’ble National Commission has observed thus:

“(ii) Consumer Protection Act, 1986—Section 3—Complaint—Maintainability—Arbitration Clause in agreement—Complainant can avail the alternative remedy—Complaint maintainable.

16. On the basis of above cited judgments, merely mentioning the Arbitration Clause in the agreement, does not bar the jurisdiction of District Forum or State Commission, therefore, the District Forum, Bilaspur (C.G.) has jurisdiction to entertain the instant complaint.

17. The appellants (OPs) have raised objection that the respondent (complainant) had purchased the JCB Machine for the commercial purpose. The complainant pleaded in para 1 of his complaint that he purchased the JCB Machine for his business and for earning his livelihood by means of self-employment. The complainant made written complaint before Police Station, Masturi, District Bilaspur . In the said complaint the complaint did not plead that that he purchased the JCB Machine for earning his livelihood by means of self-employment. The OPs have specifically pleaded that the complainant is a contractor and is doing contract work and JCB Machine was purchased by him for doing contract work.

18. The respondent (complainant) has filed copy of First Information Report recorded under Section 154 of Cr.P.C. for non-cognizable offence in which it is mentioned that in the month of February 2016 the complainant had refinanced the JCB Machine from Srei Equipment Finance Pvt. Ltd., Vyapar Vihar, Bilaspur. In the said document, he did not mention that he purchased the JCB Machine for earning his livelihood by means of self-employment. The OPs have filed copy of income tax return of the complainant for the Assessment Year 2009-10, which was filed by the complainant Raghunath Prasad Lahre before Income Tax Department. In Clause A of the Income Tax Return, it is mentioned that the gross income received from the business of motor hiring and transporting total receipt of Rs. 7,38,000. It appears that the complainant himself admitted in his Income Tax Return that he is doing transport business. It shows that the JCB Machine was purchased by the complainant for the commercial purpose.

19. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited., I (2011) CPJ 1 (SC)=IX (2010) SLT 396=(2011) 1 SCC 525, Hon’ble Supreme Court observed thus:

“7. By its order dated 4.3.2004, the State Commission accepted the appellant’s preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No. 218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the “goods” purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a “consumer” within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.

12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody’s case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent’s livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.”

20. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., I (1996) CPJ 20 (SC)=(1996) 9 SCC 422, Hon’ble Supreme Court observed thus:

“6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word ‘consumer’ has been defined under Section 2(1)(d)(i) and (ii) 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 obtain 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.”

7. Clause (i) provides that one who 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term ‘consumer’ in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., “but does not include a person who obtains such goods for resale or for any commercial purpose”. The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, Legislature intended to confine the redressal to the services contracted or undertaken between the seller and the ‘consumer’ defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to manufacture the Tin sheets for resale. It is true that the word ‘resale’ used in the exclusionary clause of Section 2(1)(d)(i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose. The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word ‘consumer’ under Section 2(1)(d)(ii) is not attracted.

8. Consequentially, Clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act.”

21. In JCB India Ltd. v. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC), Hon’ble National Commission held thus:

“6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003. In view of this, the complainant / respondent No. 1 cannot be held to be a consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs. Liberty, however, is granted to the respondent No. 1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583.”

22. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon’ble National Commission, observed thus:

“7. The Supreme Court has discussed the term ‘consumer’ in the celebrated authority reported in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held:

“The National Commission appears to have been taken a consistent view that where a person purchases goods ‘with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit’, he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion—the expression ‘large scale’ is not a very precise expression—Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression ‘commercial purpose’—a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for ‘commercial purpose’ would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self- employment, for earning his livelihood, it would not be treated as a ‘commercial purpose’ and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a ‘commercial purpose’, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., ‘uses them by himself ‘, ‘exclusively for the purpose of earning his livelihood’ and ‘by means of self-employment’ make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/ help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. A person cannot be said to be consumer if he purchases the second house.”

23. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC) Hon’ble National Commission observed thus:

“3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J.) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No. 1765 of 2007 decided on 22.5.2009, wherein it was held:

“In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable.”

24. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. v. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon’ble National Commission observed thus :

“22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held:

“12. Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century); 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). The National Commission appears to have been taken a consistent view that where a person purchases goods ‘with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit’, he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion— the expression ‘large scale’ is not a very precise expression— Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression ‘commercial purpose’—a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for ‘commercial purpose’ would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self employment’, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by selfemployment, for earning his livelihood, it would not be treated as a ‘commercial purpose’ and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a ‘commercial purpose’, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., ‘uses them by himself ‘, ‘exclusively for the purpose of earning his livelihood ‘ and ‘by means of self-employment’ make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/ help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions “used by him” and “by means of self-employment in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words”.

25. In Cheema Engineering Services v. Rajan Singh, 1996 (SLT SOFT) 817=(1997) 1 SCC 131, Hon’ble Supreme Court observed thus:

“6. In other words, the Explanation excludes from the ambit of commercial purpose in Sub-clause (1) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all Tribunals stand set aside. The matter is remitted back to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order.”

26. Looking to the documents and pleadings of both the parties and the above cited judgments, it appears that the complainant had purchased the JCB Machine for commercial purpose, therefore, the complainant is not “consumer” under Section 2(1)(d) of the Consumer Protection Act, 1986.

27. So far as merits of the case is concerned, the complainant executed First agreement dated 14th June, 2012 for Rs. 22,50,000. According to the complainant he paid the instalments regularly. On 22.12.2015, the OPs obtained signatures of the complainant on various documents and the OPs told the complainant that they sanctioned loan of Rs. 8,00,000 to the complainant. On 6.1.2016, the OPs only deposited a sum of Rs. 4,66,806 in the account of the complainant, whereas the OPs shown that they sanctioned loan of Rs. 8,00,000 to the complainant. The OPs sp

ecifically denied the above allegation and pleaded that the complainant had executed first agreement bearing No. 18688 and had taken loan of Rs. 22,50,000 on 1.2.2012, which was for 45 months and was to be ended on 15.11.2015. The complainant defaulted in making payment of two instalment, thereafter the complainant for his business purpose again obtained second loan of Rs. 8,00,000 and executed agreement No. 99482 on 22.12.2015 and the amount was adjusted with the consent of the complainant. It appears that the complainant had intentionally suppressed the above facts in the complaint. 28. The OPs have filed Statement of Account of the complainant in respect of Agreement No. 99482 dated 22.12.2015. On 1.4.2016, a sum of Rs. 8,35,502.52 was due against the complainant. 29. Learned District Forum in para 10 of the impugned order has held that the OPs during the existence of the first loan/dues outstanding of first loan, without consent of the complainant, sanctioned second loan to the complainant and without obtaining his consent adjusted the first loan amount, which comes within purview of deficiency in service and unfair trade practice. The above finding recorded by the District Forum, is perverse and erroneous. Looking to both the agreements executed between the parties, it is apparent that the complainant himself executed the agreements and obtained loan from the OPs. Both the loans were sanctioned by the OPs to the complainant for the JCB Machine which is involved in the present complaint. 30. The OPs had sent Pre-repossession notice dated 14.1.2017 to the complainant in which total outstanding amount is mentioned Rs. 1,35,906, thereafter on 11.2.2017 again Pre-repossession notice was sent by the OPs to the complainant in which total outstanding amount is mentioned Rs. 1,68,006 and on 9.3.2017 the OPs had again sent Pre-repossession notice to the complainant in which total outstanding amount is mentioned Rs. 2,09,498. It appears that the complainant had not deposited the full amount. Looking to the pleadings of both the parties and reliefs sought by the complainant, it appears that the dispute between the parties is regarding settlement of account which does not come within purview of consumer dispute. 31. In Vishal Roadways v. Economic Traders (Gujarat) Ltd., III (1998) CPJ 9 (NC)=1998 (3) CPR 28 (NC), Hon’ble National Commission, has observed that “Where the case related to settlement of accounts and for balance due on basis of account, Civil Court will be the proper remedy”. 32. In Smt. Sulakshana Talan v. Branch Manager, M/s Shriram Transport Finance Company Limited and Another, II (2014) CPJ 659 (NC)=decided by this Commission vide order dated 17.5.2012, this Commission has held thus: “9. Undisputedly, the vehicle in question, was surrendered by the appellant to the respondent No. 1 after payment of only Rs. 61,300 against the financed amount of Rs. 6,50,000. Thus, a huge amount was due against the appellant. As there was an Agreement of giving loan on interest, so naturally, the amount which was remained unpaid was also carrying some interest and, so, there was a reasonable dispute between the parties regarding settlement of account. Now it is well settled that if there is dispute between the parties only regarding settlement of account, then such dispute does not cover by the term “consumer dispute” and such dispute can only be adjudicated by a competent Civil Court or any other Forum having authority under law to settle the dispute regarding settlement of account. In the facts of the present case, so far as finance services are concerned after surrender of the vehicle, the availment of the finance services had already come to an end and thereafter only relation between the complainant and the OPs was that of a “borrower” and a “financier”, who were having some dispute regarding settlement of account.” 33. In view of the above discussions, we are of the firm view that the respondent (complainant) had purchased the JCB Machine for commercial purpose, therefore, the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the dispute between the parties is not a consumer dispute. The dispute between the parties is regarding settlement of account, which does not come within purview of consumer dispute. On both the counts, the complaint is not maintainable before the District Forum, therefore, the impugned order passed by the District Forum is erroneous and is liable to be set aside. 34. Hence, the appeal filed by the appellants (OPs) is allowed and the impugned order dated 16.2.2018, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.