2. In his complaint before the State Commission, Respondent/Complainant had contended that he had bank account no. 184 with Appellant/Bank from the early 1970s which it was operating regularly. Since Respondent/Complainant felt need of an OCC account, it requested for the same to the Appellant/Bank, who converted their above account into an OCC account after the Respondent/Complainant had duly complied with the various formalities to open such a account, which included mortgaging his property at Kashmere Gate as collateral security against the said Account. This facility continued without any problems till 2004 when due to certain unavoidable reasons, Respondent/Complainant was unable to pay the outstanding amount of Rs.51.84 Lakhs as on September, 2004 to Appellant/Bank and, therefore, the OCC account was declared as NPA by the Appellant/Bank on 31.10.2004 vide its letter dated 28.02.2005. However, with a view to settle the issue Respondent/Complainant entered into One Time Settlement (OTS) with Appellant/Bank, according to which a sum of Rs.4 Lakhs (apart from Rs.1 Lakh already deposited) was to be paid immediately and the balance sum of Rs.47 Lakhs was to be deposited within 6 months from the date of issue of that letter and if this amount was deposited within 90 days then no interest was to be charged. In case it was deposited thereafter, then interest at PLR(s) was to be charged till clearance. In terms of the OTS, Respondent/Complainant started making the payments and requested Appellant/Bank for extension of time by another 6 months. However, despite this, Appellant/Bank cancelled the OTS on the grounds of non-payment. Appellant/Bank, however, accepted the money tendered Respondent/Complainant thereafter which amounted to extension of time to clear the dues. Further, as per verbal assurances given by the officials of Appellant/Bank, the time had been extended upto 25.06.2008 by which time the entire amount of Rs.52 Lakhs was paid. Respondent/Complainant thereafter approached Appellant/Bank to get back the property documents in respect of the mortgaged property, which Appellant/Bank refused to return on the ground that certain dues towards interest were still to be paid and raised an illegal demand of Rs.22,46,005/- in this respect. Being aggrieved, Respondent filed a complaint before the State Commission on grounds of deficiency in service and unfair trade practice and requested that Appellant/Bank be directed to release the documents of mortgaged property to him with

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compensation of Rs.5 Lakhs towards inconvenience, mental agony and harassment and further Rs.5 Lakhs by way of damages.

3. Appellant/Bank on being served filed a written rejoinder before the State Commission denying that there was any deficiency in service. It was contended that Appellant/Bank was fully justified in not releasing the documents of mortgaged property since there was a clear violation of the OTS. It was specifically stated that the terms and conditions under the OTS were as follows :

"… the Bank has accepted your compromise proposal on the following terms and conditions:

To pay Rs.52,00,000/- (Fifty Two Lacs Only) in full and final settlement payable as -

(a) Rs.1,00,000/- already adjusted deposited by you at the time of submission of OTS Proposal.

(b) Rs.4,00,000/- to be deposited immediately.

(c) Balance of Rs.47,00,000/- will be deposited within six months from the date of this letter. If paid within 90 days no interest shall be charged. Beyond 90 days interest at PLR(s) shall be charged from the date of communication till clearance.

You may treat the account closed only after depositing the amount as mentioned above.

The securities will be released only after the liquidation of Bank's outstanding as detailed above.

You are to withdraw claim against the Bank, if any.

If we shall not receive the amount as per above stipulations, the concessions permitted in the above proposal shall be withdrawn automatically and the bank shall have right to claim the full amount." Since Respondent/Complainant did not adhere to the above terms and conditions of the OTS by not depositing the entire amount within a period of 6 months, the offer in the OTS became null and void and the Respondent/Complainant was liable to pay interest as claimed by the Appellant/Bank. It was specifically denied that any assurance, verbal or otherwise, had been made to extend the time limit for payment of the outstanding amount. In fact only a sum of Rs.25 Lakhs had been deposited upto 11.07.2007 i.e. after 6 months and the remaining amount

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was paid only in 2008.

4. The State Commission after hearing the parties and on the basis of evidence produced before it allowed the complaint by observing as follows:

"4. It is contended by the Ld. Counsel for the O.P. that since the applicant/complainant did not adhere to the terms of OTS by depositing the entire amount within 90 days and deposited the same after more than six months, the offer in the OTS proposal became null and void making the complainant liable to pay interest as claimed by the O.P. Bank. …

5. Let us assure that time was the essence of OTS. But that does not mean that the late deposit of amount by few months was an act of malafide. For breach of OTS (One Time Settlement) terms the OP-Bank was at the most entitled to claim interest on late deposit and should not have resorted to the act of recovering money which was in the ordinary course due from him." The State Commission, therefore, allowed the complaint in the following terms :

"i) O.P-Bank shall release the security documents as it has already received Rs.52.00 Lakhs, but against payment of agreed interest for the delayed period of six months only on the entire amount of Rs.52.00 Lakhs, as this will take care of the pleas of the O.P. that time was the essence of OTS and also in view of the bonafide of the applicant/complainant in making the payment of the entire amount. However, the O.P-Bank is not concerned with the internal dispute of the partners. The O.P-Bank shall issue the documents in the name of the owner of the property whose property has been mortgaged.

ii) Amount of Rs.3.00 Lakhs lying deposited with this Commission shall be released to the applicant/complainant."

5. Being aggrieved by the order of the State Commission, the present appeal has been filed.

6. Learned Counsels for both parties were present and made oral submissions.

7. Counsel for the Appellant/Bank reiterated that there was a clear violation of the terms and conditions of the OTS and Respondent/Complainant was required to clear entire amount which was due by 11.03.2007. However, by that date Respondent/Complainant had only deposited Rs.25.00 Lakhs and in fact as indicated in the letter dated 19.02.2008 (Annexure-4 of the paper-book) Appellant/Bank wrote to the Respondent/Complainant that they would withdraw the OTS if Respondent/Complainant did not liquidate the amount due within 7 days of the receipt of that letter. Respondent/Complainant was again given additional time of 15 days by the Appellant/Bank for liquidating the account with interest vide letter dated

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15.05.2008 (Annexure-5 of the paper-book). When there was no response, the OTS was withdrawn on 18.06.2008 i.e. well after the stipulated period for making the entire payment. Respondent/Complainant in the meantime filed a complaint before the State Commission for release of the documents of mortgaged property and during this period also paid the entire money in terms of the OTS. However, since time was the essence of the OTS, as observed by the State Commission, Appellant/Bank had rightly asked Respondent/Complainant to pay the amount of interest due once the OTS had been cancelled. Since this was not paid, Appellant/Bank was justified in not releasing the property documents which was mortgaged with them. Counsel for the Appellant/Bank also contended that in the written rejoinder filed before the State Commission they had stated that the Respondent firm being a commercial concern is not a 'consumer' as defined under the provisions of the Consumer Protection Act, 1986 and this fact has not been dealt with in the order of the State Commission.

8. Counsel for Respondent/Complainant on the other hand while agreeing that Respondent/Complainant had accepted the terms and conditions of the OTS stated that because of some financial problems it could not pay the entire amount by the stipulated period and, therefore, sought extension of time for the same. According to the Counsel for Respondent/Complainant, Appellant/Bank on their request seeking extension of time had extended the time for payment vide its letter dated 11.07.2007 till 25.06.2008 by which time the entire dues had been paid to the Bank. This was also the finding of the State Commission in its order. In fact as is clear from the letter dated 19.02.2008 (Annexure-4), the OTS was revoked after Respondent/Complainant had paid the entire amount and not before that period. Further, the State Commission had directed Respondent/Complainant to pay a sum of Rs.2 Lakhs as interest for the slightly delayed period in settling the OTS which had also been paid by him. Counsel for the Respondent/Complainant challenged the contention of Counsel for the Appellant/Bank that Respondent was not a 'consumer' in terms of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It was stated that there was no commercial activity, profit or interest in taking the OCC account and this issue stands well settled by a number of judgments of the Hon'ble Supreme Court as also National Commission. The present appeal, therefore,

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deserves to be dismissed.

9. We have heard learned Counsels for the parties and have also carefully gone through the evidence on record. The fact pertaining to the Respondent/Complainant having an OCC account with the Appellant/Bank to help its financial conditions is not in dispute. It is also a fact that the said account was declared as NPA on 31.10.2004 and that subsequently the parties entered into an OTS as per the payment schedule, as has been reproduced in the order of the State Commission. It is also not disputed that the Respondent/Complainant could not pay the entire amount as per the payment schedule i.e. within 6 months during which time he paid only Rs.25 Lakhs upto 11.07.2007. The State Commission as a first Court of fact had clearly concluded that at the request of the Respondent/Complainant for paying the remaining amount, the Appellant/Bank had indeed written a letter extending this period. We see no reason to dispute the same because the first letter written by the Appellant/Bank giving time to Respondent/Complainant to settle the account was dated 19.02.2008 which clearly indicates that the time for making the payment was extended from 11.07.2007. It is further a fact that before the filing of the complaint before the State Commission, Respondent/Complainant had paid the entire amount which was accepted by the Appellant/Bank. If the Appellant/Bank wanted to scrap the OTS, it should not have then accepted the delayed payment. Further, as observed by the State Commission, if there was some delay on the part of Respondent/Complainant, the Bank could have charged interest on the same instead of not releasing the property documents once it had accepted the entire amount due from Respondent/Complainant as per the conditions of the OTS. To sum up, we agree with the finding of the State Commission for not accepting the contention of Appellant/Bank.

10. We also do not accept the contention of Counsel for Appellant/Bank that Respondent being a commercial firm is not a 'consumer' as per the provisions of the Consumer Protection Act, 1986. Commercial concerns per se are not excluded from filing a complaint under the Consumer Protection Act, 1986 if it does not involve direct generation of profits or resale. Also as stated in the instant case, the OCC facility was sought from Appellant/Bank to help resolve the financial difficulties being faced by Respondent which was not per se a commercial

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activity generating profits. As pointed out by Counsel for Respondent, these aspects are well settled in a number of judgments, including of this Commission as also of the Hon'ble Supreme Court e.g. Harsolia Motors Vs. National Insurance Co. Ltd. [I (2005) CPJ 27 (NC)] and Madan Kumar Singh Vs. Distt. Magistrate, Sultanpur [(2009) 9 SCC 79].

11. In view of these facts, we see no reason to interfere with the order of the State Commission especially since the Respondent/Complainant has also paid the interest on the delayed payment as directed by the State Commission. We, therefore, uphold the order of the State Commission in toto and dismiss the present appeal. No costs.

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VINEETA RAI

PRESIDING MEMBER

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VINAY KUMAR

MEMBER

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