BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 12th day of May 2015
Filed on : 23-04-2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.251/2012
Between
P.J. Jose, : Complainant
Pallikunnel house, (By Adv. Tom Joseph, Court road,
Avoly P.O., Muvattupuzha)
Muvattupuzha-686 670.
And
1. Chief Manager, : Opposite parties
The South Indian Bank Ltd., (By Adv. A. Kumar, Parvathy Nivas,
Regional Office, Ground Floor, Door No. 28/3085 C, Tagore Nagar,
SIB Building, Info Park Road, Ponneth temple road, Kadavanthara,
Rajagiri valley P.O., Cochin-682 020)
Kakkanadu, Kochi-682 039.
2. The Manager,
South Indian Bank Ltd.,
Vazhakulam Branch,
Vazhakulam P.O.,
Muvattupuzha-686 670.
O R D E R
Cherian K. Kuriakose, President.
Shri. P.J. Jose, the complainant herein claims that he is a customer of the 2nd opposite party M/s. South Indian Bank Ltd., Vazhakulam Branch. The complainant is an agriculturist. He submitted an application before the opposite party bank seeking an agricultural loan for Rs. 30,00,000/- (Thirty lakhs only). The 2nd opposite party manager of the bank assured the complainant, after visiting the property proposed for mortgaging that the loan could be disbursed within 15 days. On getting such an answer from the 2nd opposite party the complainant procured and submitted the necessary loan documents before the bank. The bank has sought for legal opinion that the property offered as the security had clear and valid title. The complainant had to spent Rs. 10,000/- for procuring the documents and towards incidental expenses. The 2nd opposite party had forwarded the loan application to the regional office of the bank for sanctioning the loan. However after some days the 2nd opposite party had informed the complainant that his loan application was rejected. On enquiry it was found that the rejection of the application was without assigning any valid reason. According to the complainant the rejection of the loan application would amount to deficiency in service. Since the complainant had suffered financial loss due to the rejection of the application, he claims compensation for Rs. 1,00,000/- through this complaint.
2. Notice was issued to the opposite parties who appeared and contested the matter by filing their version.
The case of the opposite party:- There is no deficiency in service in any manner on the part of the opposite parties. The complainant is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act 1986. The definition contemplates the pre-existence of a completed transaction and the person who had merely negotiated for a loan facility with the bank will not fall within the scope of the definition of ‘consumer’. With a combined reading of Clause (b) (c) (d) and (o) of Section 2 (1) of the Consumer Protection Act would give clear indication that the transaction alleged in this case cannot be a valid cause of action for filing a complaint of this nature before this Forum. There was no deficiency in service on the part of the opposite party. Matters relating to the eligibility to the parties to the credit assistance, viability of the project and continuation of the credit facility, financial discipline of the parties, security offered by the parties, past history of the borrower and his ability to repay the loan are some of the parameters to be met by the parties positively. It is the discretion of the bank, after consideration of the documents before it to decide whether the loan is to be sanctioned or not. The complainant is not a customer of the 2nd opposite party bank. He is not operating any account with the opposite party bank. The complainant had approached the opposite party seeking agricultural loan for Rs. 30 lakhs and offered towards security a commercial property valued at Rs. 26,00,000/-. The property offered as security by the applicant did not have a clear way to the property for vehicular access. The 2nd opposite party had never assured the complainant that the Bank will disburse the loan within 15 days. The allegation of the complainant that he had spent Rs. 10,000/- for procuring documents and towards incidental expenses is denied. As per the legal scrutiny it was found that the access to the property was only a pathway, which was not acceptable to the norms of the bank while disbursing the loan based on the property concerned, the opposite parties has also sought some other property as security. However the party was not willing to give such property to the bank by way of security. The complainant was also not willing to offer his residential building as security even though it was available and unencumbered . It was in that circumstances that the opposite parties were constrained to reject the proposal of granting loan to the tune of Rs. 30 lakhs to the complainant. The opposite party bank is entitled to take a decision in good faith whether to give loan or not, and based on assessment of the paying capacity of the applicant of the loan. The complainant had filed a petition before banking Ombudsman. The Ombudsman was convinced of all the explanations and reasons for rejection of the request for loan facility. There was no financial loss or mental agony suffered to the complainant as a consequence of the rejection of the loan application. There was no candid contract between the complainant and the opposite parties. Therefore the complainant is not entitled to claim any compensation. There was no deficiency in service on the part of the opposite party and there was no cause of action against the opposite party and the complaint is therefore sought to be dismissed.
3. The evidence. The evidence in this case consistsd of oral evidence of PW1 and Exbts. A1 to A5 on the side of the complainant. The defence examined as DW1 and no documents were marked. Heard both sides.
4. The following issues were settled for consideration
i. Whether the complainant has proved that he was a “consumer” as defined under Section 2 (1) (d) of the Consumer Protection Act?
ii. Is the complainant entitled to get any compensation as prayed for?
iii. Reliefs and costs
5. Issue No. i. A consumer is defined under Section 2 (1) (d) of the Consumer Protection Act. A consumer under Section 2 (1) (d) is defined as follows:
(d) “consumer” means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly 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 partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
ii. hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who . hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation : For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;
In order to attract the definition of “consumer” in the matter pertaining to the complaint, the complainant will have to prove that he had paid some consideration with the bank and obtained some service. The complainant has no case that he paid any amount to the bank in order to obtain the service. A specific question was asked by the opposite party when the . PW1 was mounted in the witness box, as to whether he paid any amount to the bank to obtain the service of the bank, the complainant had given a definite answer that he did not pay any amount to the opposite party bank. Therefore the 1st limb of the definition clause would not satisfy the case of the complainant.
6. It was argued that the complainant had sought for a loan, in order to do agricultural business by obtaining a loan to the tune of Rs. 30 lakhs on getting the property belonging to other on lease. The complaint is silent with regard to the question as to whether the complainant was intending to do the agricultural in operation in the property for eking out his livelihood. The amount of Rs. 30,000/- sought for by the complainant by way of loan transaction would give an indication that the agricultural operation planned by the complainant on getting the loan sanctioned would have been to earn profit and not just for a livelihood. Viewing the facts of the case with the parameters of the definition of “consumer” in the Consumer Protection Act we find that the complainant would not come within the definition of “consumer” and therefore the issue is to be found against the complainant.
7. Issue No. ii. Having found issue No. 1 with regard to the question of maintainability, against the complainant we find that the 2nd issue does not arise for consideration, resulting the 2nd issue is found in the negative.
8. Issue No. iii. Having found issue Nos. 1 and 2 against the complainant we find that the complaint is not maintainable, on the finding that the complainant is not a consumer and consequently the complaint stands dismissed. Considering the facts and circumstances of the case we do not propose to any order as to costs.
Pronounced in the open Forum on this the12th day of May 2015
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of letter dt. 25/11/2011
A2 : Copy of letter dt. 21-02-2012
A3 : Copy of deed
A4 : Copy of location sketch
(subject to objection)
A5 : Pass Book
Opposite party’s Exhibits: : Nil
Depositions:
PW1 : Jose P.J.
DW1 : Jose V. Manikkath
