SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 35 of the Consumer Protection Act, 2019 (here-in-after called as the “Act”) alleging a deficiency in service against the Ops.
2. The case of the complainant, in short, is that he, being an unemployed and in order to earn his livelihood, approached the Ops for financial aid for product business and the Ops, performing all formalities and on being satisfied, both the parties executed one agreement for the purpose. Thereafter, the complainant started his product business at the time of lock down period for which he was not earning sufficient, but he used to pay the instalments with much difficulty and obtained money receipts. On 8.6.2020, the complainant came to know that a sum of Rs.23,600/- was deducted from his bank account and on enquiry he came to know that the amount has been deducted due to repeat hit of ECS by the finance company. Further, the Ops have threatened the complainant that unless he would pay the dues, they will seize the products business. The product business is the only source of his income to maintain his livelihood. It is further stated that the complainant had paid the entire dues of the Ops in due time. The Ops have played unfair trade practice and did not issue the clearance certificate nor refund the amount of Rs.25,600/-. For the above overt act of the Ops, the complainant not only suffered mental agony but also put to harassment. Further, when the Ops refused to refund the said amount on 16.10.2020, the complainant was constrained to file the present case.
The cause of action for the case arose on 10.6.2020, 12.6.2020, 28.6.2020 and on 16.10.2020 when the complainant sent notice and mail and the received the reply and lastly refused to refund the money. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of letter dated 10.6.2020 to OP NO.1.
- Photocopy of reply of OP No.1 dated 12.6.2020.
- Photocopy of e-mail to OP No.2 dated 6.11.20.
- Photocopy of reply of OP No.2.
- Photocopy of e-mail to OP o.2 dated 28.6.2020.
- Photocopy of reply of OP No.2 dated 28.6.2020.
- Photocopy of statement of account.
3. On receipt of notice, the OP No.2 appeared and filed his written version whereas OP No.1 did not choose to appear within the stipulated time for which he was set ex parte.
4. In his written version, OP No.2 has stated that the complainant has no cause of action to file the case and the case is not maintainable. He has denied the averments made in the complaint petition. This OP has stated, inter alia, that the complainant is their existing customer having availed various loans in the past which have been closed and few are active as on date. The complainant is not honoring his EMIs as per the agreement on due dates for which the cheques submitted by him got bounced for the reason insufficient funds, hence, bouncing charges were levied to the account of the complainant. It is further stated that if any customer is not maintaining sufficient balance in his bank account and his loan EMI cheque not being honored then the said customer has to pay the bouncing charges to his bank. Therefore, it cannot be said that this OP has played unfair trade practices, as alleged by the complainant. Hence, it is prayed to dismiss the case with cost. In support of its case, the OP No.2 has filed a catena of documents.
5. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a Consumer?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.Ps?
(v) Whether the complainant is entitled to get the relief, as sought for?
F I N D I N G S
6. For the sake of convenience and for better appreciation of the case, all the points are taken up together. The complainant has filed the present case claiming compensation along with other expenses on the ground that he established a product business with the financial assistance granted by the Ops and it was agreed upon between the parties that the complainant would repay the total amount in consecutive instalments. The complainant is silent about the product for his business so also the amount sanctioned by OP No.2. The complainant is also silent about the date of starting of his product business and the date of sanction of loan by OP No.2. The complainant is also silent about the terms and conditions of the agreement executed by them. The complainant has stated in his complaint that his cheques were got bounced, but remained silent about the presentation of cheques by him, that too to whom he has presented the cheques and for what purpose. The complainant, in this case, has totally suppressed the material facts which he should have placed before this Commission. To sum up, this Commission is of the considered opinion that the complainant is a loanee and the OP No.2 is the financer.
7. Upon careful perusal of the pleadings of both the parties and the documents submitted on their behalf, this Commission is of the considered opinion that the complainant has run his product business being financed by the OP No.2. In 2015(4) CPR-148 (N.C) in the case of Sunny & Others -vs.- Rajesh Tripathy, Hon’ble National C.D.R Commission, New Delhi have been pleased to observe that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, O.P has the right to recover his dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, taking possession of the product unit on the ground of non-payment of instalment has always been upheld to be a legal right of the financer. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the OP No.2 and on ex parte against OP No.1, but in the facts and circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 6th day of May, 2024 under signature & seal of the commission.
