BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                             MANGALORE

Dated this the 29^th November 2016

PRESENT

SRI. VISHWESHWARA BHAT D    : HONBLE PRESIDENT

 SRI. T.C. RAJASHEKAR                 : HONBLE MEMBER

ORDER IN

C.C.No.198/2012

(Admitted on 23.06.2012)

M/s Hotel Vailankanni,

A registered partnership firm,

Having its office at Darbe, Kasaba Village,

Puttur Taluk, D.K., represented by its partners viz,

1. Mr. David Nixon D Souza,

40 years, S/o late Dennis D Souza,

2. Sri. Joseph D Souza,

Aged 38 years, S/o late Dennis D Souza,

3. Smt. Ida D Souza,

Aged 34 years, D/o late Dennis D Souza.

                                                                            ….. COMPLAINANTS

(Advocate for the Complainants: MCK)

VERSUS

The Karnataka State Financial Corporation,

Having its head office at 1/1, KSFC Bhavan,

Thimmayya Road, Vasanth Nagar, Bangalore  560052.

2. The Karnataka State Financial Corporation

Branch/regional office at No.330/50,

3^rd Floor, Bunts Hostel Road, Mangalore  3.

Represented its Assistant General Manager.

                                                                           …...........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 & No.2: KBK)

ORDER DELIVERED BY HONBLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

The complainants is a registered partnership firm represented by its partners contend they borrowed certain money for the purpose of construction of the boarding/lodging and commercial complex, opposite parties approached complainant firm offering to provide mortgage loan of 2.5 crores for the construction of the boarding/lodging and commercial complex.  It is their further allegation that after paying process fee and TDS and additional expences and the execution of registered mortgage deed as pre condition for lending loan for registered mortgage deed and had paid additional expences but subsequently even though all legal formalities including execution of registered mortgage were completed their counterpart the obligations opposite party refused to advance the loan without assigning any valid reasons.  They also contended earlier the complainant had created mortgage in favour of MCC Bank on this same property and borrowed money which opposite party undertook to take over the amount due for 1.32 corers.   Contending that opposite parties refused to disbursement the loan amount promised by them,  seeks refund of the processing charges and TDS collected from the complainants and the expences incurred towards stamp duty and registration fee and other charges totalling Rs.9,64,825 from opponents. 

II.     Opposite parties on the other hand contend in their written version admitting instructed the complainant firm to pay processing fee of Rs.1,25,000/ and TDS of Rs.12,875/ but deny informing complainant to execute registered mortgage as pre condition of disbursement of loan amount  by remitting stamp duty and expences alleged.  They further contend the complainant approached opposite party for financial assistance to get into industrial activity of construction of hotel, boarding and lodging and the complainant had already taken a loan amount of 1.32 crores from MCC bank.  Due to careless attitude of complainant and irresponsible and fraud the loan amount was not disbursed.  It is further contended that the complainant is not a consumer within the definition of the term C P Act as complainant is involved in commercial activity.  Hence seeks dismissal. 

          2.    In support of the above complainant Mr. Joseph D Souza filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C7  detailed in the annexure here below.  On behalf of the opposite party Mr A.R Nagesh (Rw1) Senior Manager (Tech), Karnataka State Financial Corporation and Mrs. Merian Di kunha, Manager, Puttur also filed affidavit evidence and answered the interrogatories served on them.

III.     In view of the above said facts, the points for consideration in the case are:

1)  Whether a complainant is a consumer as  defined U/s 2(1)(d) of Act?

2)  If so, whether there is a Consumer  Dispute between the parties as defined under the act?

3)  What relief to the parties are entitled?

4)  What Orders?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

                 Point No. (i): Negative

                Point No. (ii): Negative

               Point No. (iii): As per the final order.                

                                                                                                   REASONS

1. IV.      POINTS No. (i):  Section 2(1)(d) of C P Act reads 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 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 promised, or under any system of deferred payments, 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 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;)

2.  Sec 2 (1) (m) for the act reads thus:

(m) person’ includes

 (i) notification means a notification published in the  official Gazette;

(ii)  a Hindu undivided family;

(iii) a co operative society;

(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

3.      Thus on going through the definition of word person used in sec.2 (1)(d) in view of sub section (m) therein permits a firm whether registered or not can be termed a person as defined under the C P Act.  Hence the ground urged for defence that the complainant being a partnership firm cannot maintain the complainant under the C P Act as it is a partnership cannot be a consumer is rejected.

4.     However another point urged for defence is that the purpose for which the complainant approached opposite party for borrowing loans is admittedly for commercial purpose.   This is clear from para 2 of allegation in complaint as to why the complainant wanted the loan of 2.5 crores from opponents.  The relevant portion of para 2 complaint reads: ........... for the construction of boarding/lodging as commercial complex …........    thus even according to the complainant the purpose for which the loan was required to be borrowed was for commercial purposes.  Hence we are of the view that the complainant comes within the ambit of the explanation to sub sec (d) of sec 2 of C P Act quoted above.  Hence we are of the opinion that the complainant cannot been considered as a consumer for the purpose of the C P Act.  Hence we are of the firm view that the complainant is not a consumer.  Hence as defined under sec 2(1)(d) read of the act as reasons mention above hence point No. 1 answered in the negative.

Point No.(ii):  In view of the answer to point 1 that is against the complainant this point no 2 does not survive for consideration. However the complainants’ is remedy if at all would be elsewhere. Hence answered point No.2 in the negative.

        POINTS No. (iii):  In the result the complaint is liable to dismiss wherefore the following order:

ORDER

                   The Complaint is dismissed.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 7 directly dictated to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 29^th November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Joseph D’Souza

Documents marked on behalf of the Complainants:

Ex.C1: 07.02.2012  : Copy of the Legal notice send to opposite Party No.1 and 2 along with acknowledgement And postal receipt

Ex.C1 (A) and (B)   : Postal acknowledgement

Ex.C2: 30.09.2011  : Xerox copy of cheque

Ex.C3:13.02.2012  : Copy of addendum notice sent to opposite Party No.2

Ex.C4: 04.03.2012  : Reply to notice issued by advocate Kishor B.K on behalf of opposite parties

Ex.C5: 18.07.2011  : Loan sanction notice issued by Karnataka Stamp Financial Corporation

Ex.C6: 29.08.2011  : Mortgage Deed

Ex.C7: 24.09.2011  : Statement of Loan Account query.

Witnesses examined on behalf of the Opposite Parties:

RW1:  Mr. A.R Nagesh, Senior Manager (Tech), Karnataka State Financial Corporation

RW2: Mrs. Merian Di kunha, Manager, Puttur

Documents marked on behalf of the Opposite Parties:

Nil

Dated:  29.11.2016                           PRESIDENT