B.N. Sinha, President:
1. This complaint has been filed by the complainant against the opposite party claiming Rs. 9,98,919.83 as compensation for the loss claimed to have been suffered by the complainant due to negligence and deficiency of service on the part of the opposite party.
2. The facts of the complainants case may be briefly stated. The Bangladesh Railways, Chittagong was in need of 1.4 million CFT Stone Ballasts for their railway works. Hence they entered into a written contract signed on 28.8.88 with respondent No. 1 The Bihar State Export Corporation (BSEC) for supply thereof to them. The supply was to begin within 45 days from the receipt of letter of credit (L/C) and was to be completed within twelve months thereof and it was to be supplied at the average rate of 1.40 lacs CFT per month. The respondent No. 1 approached the complainant for supply of Stone Ballasts to which they agreed and accordingly an agreement was signed on 15.9.88 between them. According to the said agreement BSEC the opposite party No. 1 was to transfer L/C in the name of the complainant immediately on receipt of the same and the same was to cover 100% value of the contract. But inspite of repeated approach the L/C was not received by the complainant from the opposite party No. 1. But still the complainant arranged from their own resources 1.5 lacs CFT of stone ballasts for supply and asked BSEC the opposite party No. 1 for inspection of the same as per agreement. In the meantime the complainant received letter No. 207 dated 21/23.1.89 from BSEC the opposite party No. 1 intimating that the fate of the said supply would be Rs. 586.00 per 100 CFTC and PC Hilli. Actually the said rate was not agreed upon at the time of contract and the implication of the said word C and PC had also not been explained to the complainant. However, it was learnt that the xh Hilli was in Bangladesh Area and the half was in India and the complainant had believed that the supply was to be made on the Indian Border. But BSEC opposite party No. 1 asked the complainant to give the delivery in Bangladesh side. Hilli where the complainant was not even allowed to enter without valid passport nor it was possible to take daily visa for daily supply. But inspite of these odd and uncertain circumstances, on assurance given by BSECâthe opposite party No. 1 to settle up the matter with satisfaction, the complainant arranged to supply seven trucks of stone ballasts to Bangladesh on their behalf. Moreover, BSECâthe opposite party No. 1 was responsible for processing and releasing the cash limit against the L/C at the earliest for which they also took the signatures on blank printed forms but still inspite of repeated approaches and assurances it was delayed with the result that no financial help was made available for execution of the said order. In these circumstances the complainant was forced to stop further supply. The complainant had to spend huge amount in taking land for mine, arranging licence, in machineries for making stone ballasts, labour, office and godown etc. Besides these complainant has incurred loss in profit. The complainant has been put to loss due to negligence and deficiency in service on the part of the opposite party and hence he is entitled to compensation of Rs. 9,98,919.83 details of which have been given in the complaint petition.
3. On being noticed both the opposite parties appeared and filed their respective written version controverting the claim of the complainant. The opposite parties have taken preliminary objection with regard to the maintainability of the case under the Consumer Protection Act (hereinafter called the Act). It is evident from the facts of the complainants case mentioned above that the complainant can not claim to be a consumer as defined u/Section 2(1)(d) of the Act. He had not hired the services of the opposite parties. It is the opposite party No. 1 who had given contract to the complainant of the supply of stone ballasts and the opposite party No. 2 advanced loan for that by way of export packing credit facility on the written undertaking given by the O.P.I. Hence the complainant is a âborrowerâ and the opposite party No. 2 is a âlenderâ. The complainant being not a consumer under the Act is not a complainant as defined u/Section 2(1)(b) of the Act. Hence his complaint against the opposite parties No. 1 and 2 is not maintainable under the Act.
4. Moreover, it is averred by the opposite party No. 2 in its counter version that the complainant defaulted in the repayment of loan taken from the Bank (the opposite party No. 2) and therefore Title Mortgage suit No. 560 of 1992 has been filed by the Bank â the opposite party No. 2 against the complainant and BSEC the opposite party No. 1 for recovery of the dues and the suit is still pending. It is further averred on behalf of the Bank â the opposite party No. 2 that the Bank had agreed to advance loan to the complainant on the written undertaking of BSEC â the opposite party No. 1 and the Bank declined to extend the Export Packing Credit Facility to the complainant under the advice of the B.S.E.C. â the opposite party No. 1. This averment of the Bankâopposite party is not controverted by the complainant and the BSEC â opposite party No. 1. Lastly it is for the Bank and financial institutions to decide whether to give financial assistance to any person, unit or industry with loans and it can not be maintained that the refusal to finance constitutes deficiency in service. The final decision whether or not to lend or advance any funds to any party rests with the Bank concerned. We are fortified in our view by the observations made by the National Commission in the case of Ashoke Prabhakar v. State Bank of India and Others. I (1993) CPJ 11 (NC)=(1993) 1 CTJ 123 (NCDRC) and Bunnys Gift and Novelty C Centre v. Punjab and Sind Bank, III (1993) CPJ 322 (NC).
5. Under these circumstances we find that the complainant is not entitled to any relief. We are, therefore, constrained to dismiss this complaint.
6. Taking into consideration the consumer status of the complainant, however, there is no order as to costs.
Complaint dismissed.