This complaint  having come up for final hearing before us on 04.02.2015  on perusal of the material records  and on hearing the  arguments of  Thiru.S.A.Ashraff Ali, the counsel for the complainant and  Thiru.N.Rajendran, the counsel for the 1^st opposite party,  and the 2^nd opposite party  remaining ex-party  and having stood  before us for consideration, till this day the Forum  passed the following

By President, Thiru..P.G.Rajagopal, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection

Act 1986.                    

2) The gist of the complaint filed by the complainant is that she borrowed the loan of Rs. 1,24,000/- from the 1^st opposite party , she discharged the entire loan on 27.02.2010 and the first opposite party has failed to return the two unused cheques out of the 18 cheques presented by the complainant to the first opposite party towards repayment of the monthly in stalments of the loan amount and the first opposite party has also failed to refund the sum of Rs.5000/-withheld by him towards deposit from out of the loan amount advanced to the complainant which was to be refunded at the time of discharge of the loan amount.Further the first opposite party has presented the said two cheques for collection on 24.11.2010 in spite of the entire discharge of the loan on 27.02.2010 itself with the result the said two cheques were dishonoured by the complainant’s banker, the 2^nd opposite party, who has debited Rs.75/- for each cheque totaling Rs.150/- and it is sheer deficiency of service on the part of the 1^st opposite party and the complainant prays for an order for the refund of sum of Rs.5000/- and the sum of Rs.150/- debited by the 2^nd opposite party by the inadvertent presentation of the cheques by the first opposite party with interest at the rate of 24% per annum along with cost of this litigation and grant such and other relief as this Forum would deem fit.

3) The gist of the written version filed by the first opposite party is that the complainant is not a consumer u/s 2(a) of the Consumer Protection Act and further there is a specific clause in the loan agreement for arbitration to settle the dispute between the complainant and the first opposite partyand therefore this Forum has no jurisdiction to entertain this complaint. Further,the sum of Rs.5000/- was not withheld as deposit but it was debited towards non refundable processing charges and further the complainant was instructed by the first opposite party to gives top payment instructions to the complainant’s banker for two cheques which were not handed over by the first opposite party to the complainant but the complainant had not acted according to the instructions given by the first opposite party.Therefore, the complaint is not maintainable and it has no merit in as much as there is no deficiency of service on the part of the first opposite party. The complaint is therefore liable to be dismissed.

                  5)   The points for Determination are:

                        1) Whether this Forum has no jurisdiction to entertain this complaint in as much

                             as  the  relation ship  between the complainant and the first opposite party  is

                             only  that of a debtor and creditor based upon the  loan agreement?  

                        2)  Whether there is deficiency of service on the part of the opposite parties?

                        3) Whether the complainant is entitled to any relief? If so to what relief?

6.  POINT  NO.1:-   The learned counsel for the first opposite party has contended that the relationship  between the complainant and  the first opposite party  is only that of  a borrower  and creditor as per the Ex.B.5 and therefore the complainant is  not  a consumer as  defined u/s.2(d) of the Consumer Protection Act ( in the written version the  section is mistakenly mentioned  as 2(a)) and  further in view of the arbitration clause contained in the said agreement Ex.B.5 also this Forum has got no jurisdiction to entertain this complaint.  The said contention is not at all acceptable for the reason that the  provisions of the  Consumer Protection Act shall be  in addition  to and not  in derogation of  any other law  for the  timing in force and  further it is authoritatively  settled that the arbitration clause is not a bar to the entertainment of the complaint by the Redressal Agency  constituted under the Act, even if the arbitration provision has been laid down in a statute;  Ram Nah v. Improvement Trust, Bathinda, 1994 (1) CPR 357.

7) Further, even though the complainant has borrowed the amount from the first opposite party byway of loan, the latter has charged documentation charges,processing charges etc., which are non refundable and by collecting those charges in advancing the loan, the first opposite party has taken the status of a service provider also and the complainant having availed the loan amount not on security but on payment of consideration such as documentation charges and processing charges he has also attained the status of the consumer as defined under the Act.Therefore, this Forum has jurisdiction to entertain this complaint as there is consumer and service provider relationship also between the complainant and the first opposite party.

8) POINT No.2:It is admitted by the first opposite party in the 9^th paragraph of the written version it self that the “two cheques were inadvertently sent for collection of the head office of the first opposite party to the complainant’s banker” and it is further admitted in the 8^th paragraph of the written version that the two cheques were not handed over by the first opposite party to the complainant.But the complainant was instructed to give stop payment instruction to thecomplainant’s banker. In this case the discharge of the loan the failure of the first opposite party to return the two cheques to the complainant and the presentation of the said two cheques by the first opposite party for collection and the debiting of Rs. 150/- by the complainant’s banker for returning the said cheques for insufficient of funds are alladmitted facts.The first opposite party has not even cared to send a reply to the notice sent by the complainant through his lawyer. Under Ex.A.5, the first opposite party has categorically acknowledged that the entire loan amount is discharged by the complainant and “there is no amount outstanding under the aforesaid loanaccount”.The said letter is dated26.03.2010whereasthe first opposite party has presented the two cheques retained by them on 24.11.2010 for collection of the amount and the sum of Rs.75/- each totaling Rs.150/- has been debited by the 2^nd opposite party, the complainant’sbankerfor insufficient of funds as wouldbe evidenced by Ex.A.6 the pass book of the complainant.Further, there is no proof on the part of the first opposite party that they have withheld the amount of Rs.5000/- towards loan processing charges.Even under Ex.B.2 which deals witht he loan summary schedule to the loan agreement no mention is made of the sum of Rs.5000/- to have been collected towards the processing charges. Therefore deficiency of service on the part of the opposite parties stands very well prove.

9) POINT NO.3:In the result, the complaint is allowed in part.The opposite parties are directed to refund the sum of Rs.5000/- (Rupees five thousand only)either jointly or severally with interest at the rate of 12% per annum from 22.06.2009the date of advancement of the loantill the date of realization and to pay Rs.3000/- towards cost of this litigation.

                  This order was dictated by me to the Steno-Typist, transcribed by her and corrected  and pronounced by me on this  18th  day of  February 2015.

MEMBER -I                                                                                                 PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the   Opposite parties :