BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO. 198/2016

DATE OF FILING: 01/10/2016
 

ORDER DATED: 29^th day of December, 2018

   P r e  s e n t: 

01) Smt. Sharada. K.                                       President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                            Lady Member…

                            B.A (Music)

       V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) for seeking direction to OPs to provide OD facility of complainant and renew/regularizes immediately to the complainant to operate and issue cheques to the parties and direct the Opponents to reimburse the amount of Rs.12,00,000/- with accrued interest thereupon, the loss caused to the complainant in his business till realization and direct the O.P.1 to reimburse of Rs.2,01,441/- which was paid to the LIC from his fix deposit amount with accrued interest thereupon and same be adjusted in FD with O.P.1 Bank and Rs.1,00,000/- towards mental agony and damages to the complainant, Rs.5,000/- towards cost of litigation and other reliefs deemed fit under the circumstances of the case.

2.    The brief facts of the case are as follows:

That the complainant is proprietor of M/s. Laxmi Electricals Jambagi road, Jamkhandi and this firm is a partnership firm and the partner is Smt. Sunita W/o. Jatteppa Bolegaon and complainant is carrying out the electrical sale and service work Business since so many years at Jamakhandi and surrounding areas and also he is having the transactions with Opponent No.1 and the business between the Bank and complainant is of 10 to 11 years. Complainant submitted that, the complainant is a permanent customer of opponent No.1 since his business is in Lakhs together and the he was maintain the over draft account bearing No. 8905125777 at opponent No.1 for tune of 75 lakhs and the business transactions are to be maintained in the over draft system and complainant gives the cheques to supplier the said cheques will be honoured adjusting the O.D. amount, credit in the said account and also the rate of interest charged for such OD was previously normal one. For opening the O.D. account the complainant has given the security more than what the OD amount was credited in this connection the complainant has pledged his properties so as the O.D. Account and the account maintained by the complainant is completely secured one and whenever the O.D. amount was exhausted the complainant was drawing the amount as a loan and credited to the Bank without any disruptions and the transactions between the complainant and opponent was very smooth going.

Complainant further submitted that the opponent is charging more interest on OD amount comparatively to the nationalized Bank. When this was questioned by the complainant to opponent No.1 but the opponent No.1 has not responded properly and complainant went and apprised about his business to one branch Manager of Bank of India, Jamakhandi and the manager agreed that, if the complainant opens the OD account at their branch he can open the OD account at Bank of India Branch at Jamakhandi accordingly. Further complainant submitted that, complainant had requested the opponent No.1 to renew the OD account but the opponent No.1 has not renewed and not credited the amount fixed for operation of OD account. That while opening the said over draft account and after closing the OD account the opponent has taken the signature of complainant on several forms and also on blank white papers by utilizing some of the signed white papers the opponent No.1 has opted one insurance policy by adjusting Rs.2,01,441/- dated 16/03/2016 as loan from complainants fix deposit bearing No.0084876 which is deposited on 06/06/2013 with O.P.1 bank and got the commission from insurance authorities by opponent No.1 and finally complainant had issued legal notice through his counsel on 29/06/2016. The opponent No.1 he in his official reply letter dtd: 24/08/2016 had denied all the facts of the legal notice. The complainant has suffered lot and visited the Ops several times. Hence, complainant has filed the present Complaint.       

3.      The Forum registered case issued notice to O.Ps. No.1 to 3. After receipt of notice, O.P.No.1 has appeared through his advocate and filed objection to the complaint and filed memo stating that the O.P.No.2 and 3 intending to adopt the same of objections filed by the O.P.1. Both side filed written arguments.

Brief facts of the objections of O.P.No.1 to 3:-

That all the contents of complaint except the facts which are expressly admitted herein after below are false and vexatious and the same are not tenable under the law and facts. O.P.No.1 denies the same in toto.

O.P.No.1 is the Manager of K.V.G. Bank main Branch, Jamkhandi and looking over all administration of the Bank in its area of operation of the Branch and the complainant is the old customer of the Bank and had availed two types of loans from the Bank i.e. 1) CRE term loan of Rs.75 lakhs and 2) Over Draft loan of Rs. 50 lakhs and they are security oriented loans, complainant is engaged in purchase and sale of electrical goods. The complainant had availed Commercial Real Estate Term loan of Rs. 75 lakhs and this O.P. Bank was charging the interest at the rate of 12.5% (PA) as per the existing rate of interest of the Bank and complainant requested O.P. to charge the lesser rate of interest on the CRE loan so that he can continue his loan account in the respondent Bank. Since the Bank of India, Jamkhandi branch has come forward to advance CRE loan at the interest rate of 11.20% (P.A.). Complainant request application for charging lesser rate of interest on CRE loan was submitted to H.O. But H.O. has not agreed for the lesser rate of interest to be charged on CRE loan. In view of this the complainant closed the account on 19-01-2016 and the same day his related documents were returned to him under his signature and he has continued only SSI OD over draft account in the O.P. Bank.

O.P. further contended that the Over Draft loan account of the complainant continued in O.P. Bank, was due for renewal on 12-01-2016. Since the customer has to renew the OD account every year and produce fresh documents for loan. This fact was brought to the notice of the complainant several times through phone and Inperson and by notices in writing. That after lapse of 3 months, submitted a letter on 16-03-2016 praying this respondent to extend another 3 months to submit this O.P. documents for renewal of OD account hled by him in the O.P. and accordingly the extension is given to him till 15-06-2016. During this transit period O.P. never disrupted complainant OD account transactions and maximum co-operation is given considering him as old customer.  But complainant did not turn up to the Bank and get his SSI OD account renewed. This lapse non renewal of OD account every year as per the rules of the O.P. Bank and Bank cannot keep silent over the statutory default and prepare to take legal measures to recover the OD amount as per the rules of the Bank. O.P.1 further contended that the complainant owed indirect liability and the account wise indirect liability is shown in some of the loan accounts. On 21-10-2016 JL A/c No.89056632671 and A/c 89067788934 haven renewed. Both SSI NFS loan account No.17130502281 and VKSCC loan account No.17130502281 are overdue and out of which one account is covered under SARFAESI Act (Sick Unit). Hence O.Ps.  submits that complainant against Ops. have to be dismissed with compensatory cost.

4. The complainant has filed his chief affidavit along with 6 documents. The documents are as follows:-

1. Request letter of Complainant dt: 16.03.2016

2. Legal notice to Opponents dt: 22-08-2016.

3. Opponent No.1 letter to complainant dt: 30-06-2016.

4. Reply letter of O.P.1 to legal notice dt: 24-08-2016.

5. Reply notice of Advocate dt: 27-08-2014.

6. Opponent Bank statement.

On the other hand OP No.1 to 3 filed their Chief Affidavit alongwith documents. The documents are as follows:-

1. Office copy of notice No.225 dated 22.08.2016.
2. Original postal receipts and acknowledgement.
3. Office copy of notice dated 24.10.2016.
4. Office copy of notice dated 19.01.2016.
5. Office copy of notice dated 4.02.2016.
6. Original letter issued by complainant dated 06.02.2016.
7. Office copy of certificate dated 09.03.2016.
8. Office copy of certificate dated 16.03.2016.
9. Demand collection and Balance register copy.

          5.      On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudications are:

1. Whether the complainant proved that he is consumer of O.P. as per Consumer Protection Act 1986?

2. What order?

Our Answer to the above points are:-

          Point No.1-  In the negative.

          Point No.2- As per the final order.

-: R E A S O N S :-

            6. Point No.01 : The complainant filed this complaint against the O.Ps. stating that they have a transaction with the O.P.No.1 from 10 to 11 years. The complainant had lakhs together business with the opponents Bank also, complainant is maintaining the overdaft account bearing No.8905125777 with O.P. No.1 for the tune of Rs.75,00,000/- the transaction is made with above over draft system. While observing the O.D. Account, complainant observed that O.P. charging more interest on OD amount. The complainant further submits that he had credited the amount in time.

          The complainant went out to other Bank for O D account and when he opened the OD account at other Branch and the said Bank has been sanctioned Rs.75,00,000/- to the complainant and transferred the said amount to O.P. No.1. While comparing the rate of interest of the said Bank and the OP Bank and the rate of interest is more in the said Bank. The allegation of the complainant is that, the O.P. No.1 is not given a proper service and O.P.No.1 charged more and moreover, OD account was seized by the O.P.No.1 and O.P.No.1 has opted insurance policy by adjusting Rs.2,01,441/- as a loan from the fixed deposit amount. It is not necessary.

          On the other hand the OP submits that the complainant availed several loans like CRE Term loan of Rs.75,00,000/-, overdraft loan of Rs.50,00,000/- and security oriented loans. Moreover the complainant availed commercial real estate loan of Rs.75,00,000/- and the complainant is a borrower, there is no relationship as a consumer, since the O.P. is a creditor and the complainant is a borrower. The OD facility is pertaining to M/s. Laxmi Electrical Partnership Firm.  But the complainant has filed this complaint in individual capacity. The complainant borrowed the loan for his commercial purpose and it is clear and evident fact the complainant has owned indirect liability and account by indirect liability as shown in the some of the loan accounts.

          7. On carrying of the documents and complaint and written version filed by the parties, on evolution of the evidence adduced by both the parties having heard from learned counsels. In the complaint itself it says that complainant having a Firm by name M/s. Laxmi Electricals and he had made OD on the account of the said M/s. Laxmi Electricals. It is clearly says that the complainant runs a business for the commercial purpose. Such being the fact, complainant not comes under consumer purview.

Section-2 of Consumer Protection Act,1986, sub section (d) explained consumer as under;

                   (d) “Consumer” means any person who;-

            (i) buy any goods for consideration which has been paid or promised or party paid and party 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 party paid or party promised, or under any system of deferred payment includes a person who obtains such goods for resale or for any commercial purposes;

          Such being the purview of the Consumer Forum, complainant has no jurisdiction to file the complaint before this Forum. Of course the complainant filed a citation before the Forum, but the citation is not attracted to this case.

          8. O.P. filed lot of citations which are supported to this case. The citations cited in I(2017) CPJ (NC), in case of Haryana Financial Corporation & Anr. Vs. Khusal Chand, wherein it is observed that,

          (i) Consumer Protection Act, 1986-Section 2 (1)(d), 21 (a) (ii)- Consumer Firm had obtained from HFC a term loan of Rs.60,00,000/- for commercial purpose viz, for purchase of land, building, machinery and birds for poultry farm-Prinicpal debtor, i.e., the firm having availed of the loan for commercial purpose, was excluded from category of ‘Consumer’.

          (ii) Consumer Protection Act, 1986-Section 2(1)(g), 21 (a)(ii)-Haryana Public Money (Recovery of Dues) Act, 1979-Section 3(1)(b)-Banking and financial Institutions service-Recovery of amount-Firm being a defaulter in repayment of loan amount to HFC, being one of the guarantors, HFC was within its jurisdiction to effect recovery of mutually settled amount from complainant, by taking recourse to proceedings under Act, 1979-It was not within domain of State Commission to go into merits of amount determined to be payable by complainant in order to liquidate liability of principal debtor, by a statutory authority, in exercise of the power vested in it under Act, 1979-Complainant alleging deficiency in service on part of HFC was utterly misconceived, if not mala fide and abuse of provisions of Act.

          9. In the light of above observation of Hon’ble National Commission, it is clear that, complainant is not a consumer. For all the above reasons and the careful analysis of the documents, Forum come to the conclusion that Point No.1 is in the negative.

10. POINT NO.2:  In view of our findings on the above point, In the result, we proceed to pass the following:

:: ORDER ::

1. The Complaint is dismissed.

2. No order as to costs.

3. Complainant is directed to approach the proper court of law.
4. Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 29^th day of December 2018)