Today is fixed for fresh hearing of argument.
The complainant files hazira through his Ld. Advocate.
Lawyer’s hazira for the OPs also filed.
At the outset, the Ld. Advocate for the complainant stated that he is ready for argument while the Ld. Advocate for the OP stated that a maintainability petition filed by him on 23.07.2019 is still pending. Ld. Advocate for the complainant while pleaded that filing of maintainability petition of argument stage is out of fitness, the Ld. Advocate for OPs argued that maintainability petition can be filed at any stage before judgment/final order.
Logically, the question of maintainability preceeds and other stages follow, if however, the case is found to be maintainable. Knowing fully well that the maintainability petition has not yet been disposed of, the Ld. Advocate for the OP, filed, strangely, another petition to-day praying the Forum to direct the complainant-company to produce all business related papers before it, which will substantiate that the complainant is a commercial concern and also to fix a date for the hearing of such petition. The Ld. Advocate for the complainant, however, objected and described such a prayer as delaying tactics resorted to by the OPs.
As both the sides were present, the maintainability petition dtd. 23.07.2019 and also the petition filed to-day were heard.
In to-day’s petition, i.e., petition dtd. 07.11.2019 at Para-1, the OPs describe the complainant-company as a business concern availing loan from them for commercial purpose but in Para-2, ibid, the OPs pray to the Forum to call for business related papers from complainant- company for a correct finding as to whether the complainant- company is, at all, a consumer defined under section 2(1) (d) of the C.P. Act. This is really a contradiction in themselves as the contention in Para-1 does not corroborate Para-2.
The complainant filed this case as a company and also admitted that they availed credit facilities from the OPs. The complainant ;have not filed the case as individual consumer nor have they denied that they are a commercial concern. This is also well within the knowledge of the OPs. Moreover, it is up to the Forum whether they require concerned papers from the complainant and if, at all, they require- which one of those papers or all, in order to establish that the complainant is a company. Such a prayer of the OP-Bank leads to a belief of themselves that their contentions are not so reliable to the Forum and thus indicates a lack of self-confidence in them because this Forum have not put ever any question about the status of the complainant.
Thus, this Forum do not find any merit in to-day’s petition and hence rejected.
The case, the maintainability of which is challenged by the OPs vide their petition dtd. 23.07.2019, is, in brief, that the complainant-company’s request for increase of the credit amount was refused by the OP-Bank and the complainant has thus compelled to take loan from another Bank, namely, Karnataka Bank which cleared all the outstanding dues of the complainant as on 30.07.2015 to the OP and the loan a/c was closed. But the OPs did not release the original documents of land kept as security though those were required to be kept as security with the Karnataka Bank.
On 31.07.2015, the OP-Bank issued a letter to the complainant-company demanding pre-payment charges totaling Rs. 13,80,470.59/- which the latter denied to pay vide his letter dtd. 03.08.2015 as the loan was completely cleared. The former again by their reminder dtd. 10.08.2015 demanded pre-payment charges in response to the complainant’s letter dtd. 06.08.2015 requesting to release the original document of land kept as security.
Karnataka Bank was asking the complainant to deposit the original papers of land/Deeds as mortgage and failing so, the re-call of loan. The complainant was thus compelled to pay on 19.08.2015 the pre-payment charges of Rs. 13,80,470.59/- to the OP-Bank. The complainant had no consent to make such payment but had to do so for the sake of release of all original land documents mortgaged with them under coercion threat and illegal pressure of the OP Bank.
Thereafter, the complainant requested the OP Bank to return the pre-payment charges on a number of occasions on the reason that the sanction letter had no mention of any condition of paying such charge in case of pre-mature closure of loan, nor was any such contract ever signed by the complainant and the OP. A lawyer’s notice dtd. 21.04.2016 was served on the OPs to that effect and the OP replied to that notice through a lawyer’s notice dtd. 28.04.2016 but did not return the pre-payment charges.
Perused and considered. Once the pre-payment charge had been paid and the original land documents/title Deeds etc. are taken back, the cause of action is supposed to exist no more. Such taking back on payment occurred on 19.08.2015 but the case was filed after 10(ten) months on 22.06.2016. The Forum is of the opinion that the case should have been filed before making payment of such charge for pre-mature closure of loan a/c when the original papers mortgaged were not being returned by the OP-Bank inspite of closure of loan on full repayment.
However, after taking the original land documents back from the OP-Bank on payment of pre-payment charges as per demand, the complainant-company served a lawyer’s notice dtd. 21.04.2016 claiming the refund of pre-payment charge so paid. The OP-Bank replied to such claim dtd. 21.04.2016 through a lawyers notice dtd. 28.04.2016 but did not refund the pre-payment charges. After receiving back the original documents mortgaged, such a demand of refund of the paid amount lacks any justification raising, rather, a question why then such charges were paid, which has no answer suited to the Forum.
The argument that the complainant was compelled to pay pre-payment charge under coercion, threat and pressure illegally created by the OPs is not acceptable to the Forum in as much as those are criminal acts including giving consent on being forced to do so, and hence do not fall within the ambit of consumer Forum.
While in the application, illegal demand and realization of the pre-payment charge of Rs. 13,80,470.59/- by the OP was alleged, but therein, the mention of the amount of pre-paid loan against which such charge is payable has been intelligently avoided. As the price of goods equals to the wholesale price paid by the retail seller plus his profit to be earned from prospective buyers, so also the charge/interest is an integral part of the principal amount (either before or after the maturity) and counts invariably towards ascertaining the pecuniary jurisdiction of the Forum. Viewed from this angle, the District Forum lack pecuniary jurisdiction also.
The OPs filed on 23.07.2019 a maintainability petition stating, inter alia, that the instant case is not triable by this Forum because the applicant is not a consumer u/s-2(1)(d) of the C.P. Act, 1986 as he availed the loan from the OP for his business engaging workers and employees.
The complainant has never contended that he is not a company rather, he filed the case in the name & style of Annapurna Vyappar Pvt. Ltd. and not individually. The amount of loan involved in his commercial concern indicates that the purpose is profit-making also. That means, in other words, that the complainant-company availed this loan not exclusively for the purpose of earning his livelihood and not by means of self employment also but by more than one Director and of course other workers being a Registered-Company under the Companies Act, 1956. Thus the complainant-company does not fall under the definition of ‘consumer’ as per section 2(1)(d) of the C.P. Act, 1986.
Hence, the maintainability petition dtd. 23.07.2019 filed by the OP side is allowed. The instant application is not triable in the Forum because of absence of cause of action on the date of filing the application, want of adjudicational jurisdiction and also pecuniary and, above all, complainant’s not being a ‘consumer’, and is DROPPED herewith.
