Date of Filing: 01/07/2015
Date of Order:30/11/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.Ps and prays for orders to direct the O.Ps to issue No Due Certificate with respect to loan account of Complainant i.e. bearing No.LIFSBNG0030210 and further direct the O.Ps to remove the name and account of complainant from CIBIL and further direct the O.Ps to pay a sum of Rs. 5,00,000/- towards damages to the complainant and such other reliefs as this Hon’ble Forum deem fit.
2. The brief facts of the complaint are that the complainant has borrowed the loan amount of Rs.12,50,000/- from the O.Ps vide loan agreement dated 31.1.2008 and stated that he has repaid the entire loan amount along with interest to the O.Ps. It is alleged that inspite of clearance of the loan O.Ps insisted to pay Rs.1,80,790/- and late charges fee of Rs.3,45,864/- along with cheque bounce charges of Rs.16,000/-. It is stated that O.Ps sent a letter dated 3.4.2010 to the complainant stating that they have given an offer as on 1.4.2010 with respect to loan account of the complainant is Rs. 7,15,225/- for which the O.Ps have offered for one time settlement of Rs. 3,15,000/- to be paid on or before 3.4.2010 itself. It is stated that complainant by accepting the offer by the O.Ps and on the very same day paid the said amount towards his loan account as per one time settlement. Further the O.Ps also issued receipt for having received the amount as full and final settlement. Thereafter complainant requested the O.Ps for issuance of no due certificate at the stage O.Ps have informed the complainant that after obtaining the necessary signature from the head office they will issue no objection certificate. But for the reasons best known the O.Ps did not made any offer to issue no due certificate. It is stated that on the other hand complainant came to know that his account has been marked under CIBIL. Even though complainant has paid the entire loan amount as per the offer letter given by the O.Ps. It is stated that, it might be true that the complainant might not have paid the loan amount in time but he has cleared the loan amount with interest as per one time settlement. It is alleged that O.Ps intentionally and purposefully has placed the complainant account under CIBIL and as such complainant being a businessman and he is in need of credit facilities suffering from the act of the O.Ps. Thereafter the complainant got issued the legal notice dated 17.4.2015 to the O.Ps but the O.Ps failed to reply the notice. Hence this complaint
3. Upon issuance of the notice O.Ps entered appearance through their counsel and filed their version. In the version it is admitted that the complainant had approached the O.Ps for business loan and borrowed the loan amount of Rs.12,50,000/- and the said loan disbursed to the complainant based on the terms and conditions of mutual agreement executed between the parties. It is submitted that complainant agreed to pay back the said loan amount in 24 EMI’s and each EMI consists of Rs.63,011/- and the complainant agreed to pay punctually without any break till the tenure of agreement. The complainant also executed the promissory note for the same. It is contended that complainant in paying schedule monthly installment was not disciplined and he willfully ignored the terms and conditions of the agreement that timely payment of the EMI’s is the essence of the contract. But the complainant paid only 21 EMI’s and there are three EMI’s outstanding and payable along with other charges from him which amounts to Rs.6,31,415/- as per foreclosure statement dated 22.7.2015. Further contended that the arbitration proceedings have already been commenced against the complainant in Arbitration Case No.450/2011 and the complainant has filed his reply on 9.3.2011 and the matter is subjudice. It is contended that complainant borrowed the loan amount for the purpose of long term capital and only for the purpose of earning profits by investing the money for business expansion. Further complainant is the sole proprietor of the firm Prakash Constructions and i.e. having annual turnover of Rs.5.10 crores with nine employees and maintaining the overdraft facility of 90 lakhs from ING Vysya Bank. Hence contended that complainant is not a consumer as defined in the Act. Further contended that complaint is hopelessly barred by limitation. Further the loan has been disbursed by the company on 31.1.2008 and the last payment was received from the complainant on 31.3.2010. But the complaint is filed after delay of around three years without supporting any delay condonation application. It is contended that the company has registered a complaint before the Ashok Nagara police in Crime No.044/2010 dated 3.9.2010 but the complainant concealed the said fact. Further contended that complainant did breach of terms and conditions of the loan agreement.
4. Further O.Ps contended that they have not offered one time settlement as stated in the complaint. It is seriously alleged that the complainant fabricated the so called letter dated 1.4.2010 and receipt dated: 3.4.2010 and hence O.Ps lodged the criminal complaint against the complainant before the Ashok Nagar police station as stated above. It is denied as false that the complainant has settled the entire amount as per the offer given by the O.Ps. It is admitted as true that the complainant vide its letter dated 24.6.2010 requested to issue no due certificate, however the same was not acceded as the entire transaction was fraudulent and fabricated. Further contended that complainant committed default as a matter of procedure his name has been reflected in the CIBIL. As the arbitration proceedings was already initiated against the complainant by the O.Ps and hence reply was not sent to the complainant legal notice and the same is a matter of record. The relevant loan documents filed for the perusal of the Forum that the loan is obtained for the commercial purpose. With the above grounds the O.Ps ultimately prays for dismissal of the complaint with cost.
5. In order to substantiate the case of the parties and both the parties have filed his affidavit evidence and we also heard the arguments.
6. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant is a consumer?
(B) Whether the complaint is hit by law of limitation?
(C) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(D) Whether the complainant is entitled to
the relief prayed for in the complaint?
(E) What order?
7. Our answers to the above points are:-
POINT (A): In the Negative.
POINT (B): In the Affirmative
POINT (C) & (D): In the Negative.
POINT (E): As per the final order
for the following:
REASONS
POINT No. (A):-
8. On perusing the rival pleading of the parties it is an undisputed fact that the complainant had borrowed a loan amount of Rs.12,50,000/- from the O.Ps by executing loan agreement dated 31.01.2008. It is also not in dispute that complainant agreed to repay the loan amount with interest by way of 24 Equated Monthly Installments of Rs.63,011/-. The complainant is admitted that he has not repaid the loan amount regularly.
9. The sole allegation of the complainant is that as per the offer given by the O.Ps for one time settlement and thereby complainant repaid the entire loan amount at one time settlement in pursuance of their letter dated 3.4.2010 but the O.Ps insisted to pay Rs.1,80.790/- plus late charges of Rs.3,45,864/- and cheque bouncing charges of Rs.16,000/- inspite of the clearance of the loan amount.
10. It is the serious allegations of the O.Ps that the complainant fabricated the letter dated 3.4.2010 and the receipt and thereby the O.Ps lodged the police complaint against the complainant before the Ashok Nagara Police and the case is registered in Crime No.0440/2010. However the complainant did not say anything about the registration of the complaint in his pleadings and also about the participation in the Arbitration Proceedings as contended by the O.Ps. The non-disclosure of true facts regarding participation in the Arbitration Proceedings by the complainant and lodging the police complaint against the complainant by the O.Ps, it is obviously suppression of material facts. The law will not lend its helping hand whoever suppress the material facts.
11. It is the settled position of law that one who alleges deficiency in service on the part of the O.Ps and the burden of proving is on the person who alleges deficiency in service. On perusing the Annexure-B produced by the O.Ps it clearly reveals that complainant is the proprietor of Prakash Constructions and nowhere it is stated in his complaint he has availed the loan for his exclusive domestic purpose, but on perusal of the record discloses that the complainant obtained the said loan in the name of Prakash Constructions to do business activities and signed the proposal of loan in the capacity of Prakash Constructions proprietor. Hence complainant availed the said loan facilities exclusively for the business purpose. On perusal of Annexure D it also discloses that O.P has initiated the Arbitration Proceedings before the sole arbitrator. It is note worthy to mention that, as per the definition of Section 2(d) of the Act it reads thus:
“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 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”
12. In the light of above discussion, when we analyse the facts of the complaint, it clearly reveals that the complainant borrowed the loan amount in order invest in the business activities i.e. for commercial purpose in order earn profits. Hence, we have no hesitation to hold the complainant is not a consumer. Accordingly We answered the Point No.(A) in the Negative.
POINT No.(B)
13. It is worth to note that, as per the settled position of law the doctrine of option is given to the complainant either he can file consumer complaint or approach for arbitration proceedings. Just because of existence of clause of arbitration in the agreement the complaint is not debarred moving to the Consumer Forum. As per Section 3 of the C.P. Act it is an additional remedy but it is not derogative any other law time being in force. In this particular case when the arbitration proceedings commenced during the 2011 itself why the complainant not participated but belatedly after four years approached to this Forum and hence we find no bona-fides from the side of the complainant obviously it bars to move to the Consumer Forum.
14. It is worth to note that, when the O.Ps seriously alleged regarding the one time settlement letter issued by the O.Ps as fabricated one and thereon O.Ps lodged the criminal complaint against the O.Ps. Whereas the complainant did not state anything in his affidavit evidence, denying the said by providing cogent evidence and it shows that some fishy in the transaction took place. Mere exchanges of notices and on perusing the Doc. No. 26 produced by the complainant it is not sufficient to hold that the O.Ps are deficient in their conduct and in their service.
15. As per the saying of the complainant he has repaid the loan amount during the year on 3.4.2010 itself. If such being the case, the cause of action accrued to complaint for his grievance during the 2010 itself and the time runs from that date. Further the complaint is filed on 1.7.2015 after lapse of four years and when the complainant requested no due certificate from the O.Ps and unfortunately complaint is not accompanied with the delay condonation application and the complaint is not satisfactorily explained to the Forum in order to condone the delay. Therefore in our opinion the complaint is also hopelessly barred by limitation. Accordingly we answered Point No. (B) in the Affirmative.
POINT No. (C) & (D)
16. It is pertinent to note that, while answering the Points No. (A) and (B) we came to know that though the Arbitration Proceedings initiated against the complainant during the years 2011, but without disclosing the said fact approached to this Forum after the gap of four years without supporting delay condonation application. Also on going through the entire complaint we reached to conclusion that there is a face of commercial transaction and hence held that complainant is not a consumer. Moreover to answered all the points though not required if the case of the complainant considered on merit, when the complainant failed to produce cogent in evidence to establish deficiency in service on the part of the O.Ps, but the mere saying and exchange of communication is not enough to establish the bona-fides of the complainant when the O.Ps seriously alleged against him about the fabrication of records. But the complainant did not whisper anything in his evidence about the allegation made by the complainant. On the basis of available evidence on record and viewing from any angle complainant failed to prove deficiency in service on the part of the O.Ps and hence he is not entitled for the relief as sought in the complain. Accordingly we answered the Point No. (C) and (D) in the Negative.
POINT No. (E):
17. On the basis of answering the Points (A) to (D), in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby dismissed. No order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of November 2017)
MEMBER MEMBER PRESIDENT
*RAK
