Dated : 23 Mar 2023

HON’BLE SUDIP NIYOGI             PRESIDENT

FACTS

            The complaint case in short is that: -

            The Complainant claiming to be a reputed customer of Bajaj Finance Ltd. availed various consumer durable loans for purchasing household items and repaid the same on time without any default for which the OPs issued no objection certificates in respect of the said loans nos. of which are 4100CD72551027, 410REM96551084 and 410REM96550420 respectively.

In the month of October, 2021, he came to know that an amount of Rs.7,770/- in July, 2020 and from August, 2020 till September, 2021, at the rate of Rs.6,300/- each month were deducted from his account being no.68003064852 with his Bank namely, Bank of Maharashtra, Shyam Bazar Branch by the OPs. Immediately he contacted the OPs over phones and was informed that he had availed a loan of Rs.2,36,262.84/- on 26.05.2020 being loan account no.410TPFFZ293095, though he claimed to have not availed any such loan, nor any such amount was credited to his said account. According to him, with mala fide intention and wrongful act, OPs deducted a sum of Rs.1,38,655/- from his account. In November, 2022, a statement of account of the said loan was issued to him claiming rate of interest @32% p.a. with a tenure of 72 months for re-payment. He further claimed that the OPs subsequently through telephonic conversations, issuing letters demanded Rs.2,62,377/- being the outstanding dues. This, according to him, is nothing but an unfair trade practice adopted by the OPs.

So, by filing this case, Complainant claimed an amount of Rs.1,38,655/- which is alleged to be the extra money taken by the OPs along with 18% p.a. and Rs.2,00,000/- for compensation, mental harassment and agony and Rs.50,000/- towards cost of litigation.

OP No.2 contested this case by filing a written version alleging that the instant case is not at all maintainable before this Commission. Also stated that initially Complainant had a personal loan vide loan account no.410PMTEV151261 for Rs.2,73,000/- dated 11.07.2019 with EMI of Rs.11,890/- for a period of 36 months commencing on 02.09.2019 and ending on 02.08.2022 and out of the said amount of loan Rs.2,50,634/- was disbursed and the differential amount was deducted towards processing fees and other incidental charges etc. with the consent of the Complainant. They also claimed that in the month of May 2020, Complainant had foreclosed the said loan account and with his consent the outstanding amount of Rs.2,31,630/- got carried forward and a new loan account was generated in his name vide loan account no. 410TPFFZ293095 for Rs.2,36,262.84/- dated 26.05.2020. OPs claimed that complainant consented to the said new arrangement by sharing one time password, sharing the Bitly Link which was received in his registered mobile no.9830019244. They further stated that out of the total loan amount of Rs.2,36,262.84/-, an amount of Rs.2,31,630/- was credited and the differential amount was deducted towards switch fee. First EMI was deducted for Rs.7,770/- and from the second EMI onwards an amount of Rs.6,300/- was deducted as the said loan was a flexi loan and there was a difference of tenure of approximately 40 days from the date of disbursement to the first due date of EMI. They denied the allegations of unfair trade practice etc. as made by the Complainant. So, they prayed for dismissal of the instant complaint.

The instant case against OP No.1 was heard ex parte as they did not contest the case.

The only point for consideration is whether the Complainant is entitled to the relief (s) as prayed for.

                                                                                            FINDINGS

On the prayer of the Complainant, the petition of complaint was treated as evidence on his part. OP No.2 filed their evidence, Complainant issued interrogatories against the said evidence and to which replies were also provided on behalf of OP No.2. Both parties also filed brief notes of argument.

Complainant claimed to be a reputed customer of Bajaj Finance Ltd., who is found to be OP No.2 herein in this complaint, as he availed various consumer durable loans for buying household items and on repayment of loans, he finally got no objection certificates i.e. NOCs from OP No.2. He cited about such NOC certificates in respect of three loans number of which are 4100CD72551027, 410REM96551084 and 410REM96550420 respectively. But, he did not give anything in details about the particulars of the transactions for which he had taken those loans in support of his claim.

However, the problem arose when he came to know that an amount of Rs.7,770/- in the month of July, 2020 and thereafter from August 2020 till September 2021 at the rate of Rs.6,300/- were deducted on the second day of each month from his account. From the petition of complaint, it revealed that he came to know only after the deduction was made in September, 2021. He claimed that on inquiry he was told by Bajaj Finance Ltd. i.e. OP No.2 that said deductions were the amount of EMIs in respect of his loan of Rs.2,36,262.84/- vide loan account no. 410TPFFZ293095 dated 26.05.2020. Complainant claimed the said statement of OP No.2 is nothing, but a cocked-up story.

We find, Complainant did not adduce any evidence on affidavit separately, rather he preferred by filing an application, to treat his petition of complaint as evidence on his part. We further find after the evidence of OP No.2 was filed, Complainant filed interrogatories/questionnaires with respect to the contentions of OP No.2 and to which OP No.2 gave replies in details. From all these, it is found to be the categorical case of OP No.2 that initially Complainant had a personal loan account vide no. 410PMTEV151261 for Rs.2,73,000/- dated 11.07.2019 with EMI of Rs.11,890/- and the contract for the said loan was for 36 months, commencing on 02.09.2019 and ending on 02.08.2022. Out of the said loan, an amount of Rs.2,50,634/- was disbursed and the differential amount was the deductions towards processing fees and other incidental charges as agreed by the Complainant. Subsequently, as claimed by OP No.2, on the prayer of the Complainant, the said loan account was foreclosed and a new loan account was generated on 26/05/2020 in the name of the Complainant vide loan account no. 410TPFFZ293095 for Rs.2,36,262.84/- which includes the principal outstanding of Rs.2,31,630/- of the said previous loan. OP No.2 specifically claimed that this loan account was booked only after the Complainant gave his consent by sharing the one-time password through Bitly Link which was received in his registered mobile no.9830019244 and then by using and sharing the said number over the link. The Complainant had consented to avail the loan through the IP Address which has been given as [2402:3a80:a45:6b72:f36d:5c1a:578f:b11e].

In their replies to the queries of the Complainant, OP No. 2 replied that Complainant paid about 10 EMIs which were deducted till the closer of the said previous loan account no. 410PMTEV151261 of 2019.

What we further find in their replies to the different queries of the complainant regarding the said loan as to how it was created etc. OP No. 2, in fact, gave the same in details, as they stated in their written version as well as in their evidence. In support of their contentions, OP No. 2 also filed the documents which were also duly supplied to the complainant.

As against all this, complainant barring only claiming that the OPs cocked up the stories of loan and submitted manufactured documents. We find in his affidavit, that complainant claimed to be a businessman by profession. Admittedly, he took several loans from OP No. 2, may be for purchasing various household items as claimed by him. But as we already pointed out earlier that he did not give any details of such loans in respect of which NOCs were obtained by him.

Now, with regard to the subsequent loan following the claim of OP No. 2 curiously enough, complainant did not deny anything specifically, not even in their written argument, he did not also deny the contentions of OP No. 2 regarding the said loan account No. 410PMTEV151261 dated 11/07/2019 for Rs.7,73,000/- EMI of which was Rs.11,890/- and/or subsequent foreclosure of that loan and creating a new loan account No. 410TFFZ293095 for Rs.2,36,262/- on 26/05/2020 by way of filing any additional evidence on affidavit as he did not have any scope to deny all these specifically in this petition of complaint. So, the complainant is found to have not taken the opportunity to deny the said contentions of OP No. 2 by filing evidence to that effect.

This apart, we find, the Complainant did not produce the original passbook of his account for reasons best known to him. He only produced the photocopies of his bank account bearing no. 68003064852 of Bank of Maharashtra, Kolkata, Shyam Bazar Branch. We find only the photocopies of the first page of the said account and a few other pages showing transactions, but not covering the entire period from July 2020 to September 2021. It cannot be taken for sure that the transactions which are shown in the said photocopies were in respect of the said account as mentioned in the first page. It is absolutely not clear from these documents.

Another astonishing thing that must be noted that if the Complainant had not taken any such loan as claimed by OP No.2, how he could remain so silent from July 2020 to September 2021 during which the amount of EMIs was claimed to have been deducted from his account. No cogent explanation is forthcoming from him. So it is not at all believable that Complainant had no knowledge about such deductions from his account.

Complainant in this case made parties Bajaj Finserv, as OP No. 1 and Bajaj Finance as OP No. 2. OP No. 2, in their written version and evidence, contended that Bajaj Finserv Limited and Bajaj Finance Limited are two legal entities. Bajaj Finserv Limited is not engaged in the business of financing of consumer durables to the end customers. OP No. 2 also admitted that the complainant availed various consumer durable loans from Bajaj Finance Limited and from the forgoing discussion, it is quite clear that complainant also claimed to have taken loan from Bajaj Finance Limited.

OP No. 2 contended that the present consumer dispute is not maintainable and this Commission has got no jurisdiction to entertain the complaint as the relation between complainant and the OPs is that of Debtor and Creditor and not that of consumer and service provider. It was also argued citing decisions of Hon’ble National Commission in Ram Deshlahara Vs. Magma Leasing Ltd., III (2006) CPJ 247 (NC) that the financer does not render any service within the meaning of Consumer Protection Act and the relation between the Finance Company and the complainant being that of Debtor and Creditor. Here in this case, the transaction of loan and realization of EMI by way of deduction from the account of the complainant are found to be commercial transaction in nature. In the facts and circumstances of the complaint case, it seems that the complainant has not come to this Commission with clean hands and there is suppression of facts on his behalf.

So, having considered the case of both the parties and following the aforesaid discussion, we think that complainant is not entitled to any relief in this case and the instant case is liable to be dismissed.

Accordingly, it is

                                                                    ORDERED

That the instant case be and the same is dismissed on contest against OP No.2 and ex parte against OP No.1.

No order as to costs.

Dictated and corrected by me

             President