DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/ 78/2015

No. DF/ Central/

SH. NAND KUMAR GUPTA

R/O 121 IIND FLOOR,

RAMPRASTH COLONY ,

2 BLOCK C POLICE STATION LINK ROAD, TEHSIL GHAZIABAD-201011
 

                                                                                      ……..COMPLAINANT          

 VERSUS

1. M/s Cholamandalam Investment And Finance Company

Plot no. 6 , Ist Floor, Near Metro Pillar no. 81,

Main Pusa Road, Karol Bagh ,

Delhi-110005

Also at

M/s Cholamandalam Investment And Finance Company

Dare House Ist Floor, 2, NSC Bose Road,

Chennai-600001

2. M/s JMD associates

Direct Selling Agent,

Plot no. 6, Ist Floor, Near Metro Pillar no. 81,

Main Pusa Road, Karol Bagh ,

Delhi-110005

                                                                                                …..OPPOSITE PARTIES

                                                              ORDER                                       

Rekha Rani, President

1. Sh. Nand Kumar Gupta ( in short the complainant)  filed  the instant complaint  U/s 12  of the Consumer Protection Act 1986  as amended up to date (in short the Act). The  relevant facts in brief as pleaded in the complaint are as follows:

Complainant availed loan from M/s Cholamandalam Investment Pvt Ltd. (in short the OP) which was repayable in installments. Complainant for the reasons mentioned in the complaint requested the OP to foreclose the loan account vide his letter dated 25.05.2014.  OP vide their letter dated 9.01.2015  charged foreclosure penalty @ 4% which is illegal and against RBI Circular dated 14.07.2014.  Complaint is filed seeking direction to the OP to apologize for inconvenience caused to the complainant; to refund the entire loan amount and not to charge foreclosure charges @ 4% on the outstanding principal amount; Rs 50,000/- for causing mental agony to the complainant with Rs. 10,000/- as litigation cost.

2. On receipt of notice of the instant complaint OP appeared and contested  the claim vide its written statement. It is stated that complaint is not  a consumer as the loan in question is a business loan which was obtained by the complainant and co-borrower Mamta Gupta for their business requirements which is  evident from the loan application form, loan agreement and end use letter duly signed by the complainant. It is further stated that complaint is barred by limitation because as per the case of the complainant himself the cause of action arose in 2011 whereas the complaint was filed after four years i.e. in 2015.  It is denied that there is any deficiency in service on the part of the OP.  It is stated that nothing has been charged wrongfully from the complainants.
3. Both sides have adduced evidence by way of affidavits and we have  heard complainant in person and Mr. D.S. Mehta counsel for the OP and have perused the case file.
4. In para 6 page 2 of its reply OP has clearly mentioned that complainant along with co-borrower Mamta Gupta approached the OP on 30.01.2013 vide loan application no. HE-174818 for grant of Loan against property for an amount of Rs. 1.50 Cr. for his business requirement. After evaluating his proposal form and repayment capacity a loan of Rs. 1,30,000/- was approved by the OP vide sanction letter dated 27.02.2013 and that in furtherance to the sanction of the loan complainant along with co-borrower executed loan and security agreement for the sanction of loan of Rs. 1,30,000/- on 27.02.2017 and deposited the original title deeds of the property bearing no. C-121, 2^nd floor, Ram Prasta, Ghaziabad in order to create equitable mortgage by deposit of the title deeds under the loan agreement bearing no. X0HEDHE00000919250.  It was further stated that the entire loan amount was disbursed to the complainant and the same was repayable in 156 EMIs of Rs. 181364/-.  The said case of OP has not been denied by the complainant in corresponding para 6 of his rejoinder. Complainant has admitted that he along with co-borrower Mamta Gupta approached OP on 30.01.2013 vide loan application no. HE-174818 for grant of Loan for an amount of  Rs. 1.5 Crore for his business requirements. It is also admitted that after evaluating his proposal form and repayment capacity loan of Rs. 1,30,00,000/- was approved vide sanction letter dated 27.02.2013.  It is also admitted that complainant along with co-borrower executed loan and security agreement for the sanction loan of Rs 1,30,00,000/- on 27.02.2013 and deposited the title deeds of the property bearing no. C-121, 2^nd Floor, Ram Prasta , Ghaziabad  in order to create equitable mortgage by deposit of the title deeds under the loan agreement bearing no. X0HEDHE00000919250.  It is also admitted that loan was repayable in 156 EMIs of Rs. 181364/-.  Since the loan amount sanctioned and disbursed is Rs. 1,30,00,000/- the same is beyond the jurisdiction of this forum.
5. As per Section 11 (i) of the Act the District Forum has pecuniary        jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceed Rs. 20 Lacs.
6.  Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous  Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016  observed that value of goods & services  and value of the relief claimed  is to be  seen for the purpose of pecuniary jurisdiction instead of value of alleged  deficiency.
7. The same question again came up before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155.  In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.  The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of  the said service is taken into consideration for the purpose of determining   pecuniary jurisdiction.
8. In another case titled  Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission  judgment in  Ambrish Kumar Shukla  (supra)  was again referred and following relevant part  of the said judgment was quoted:  

“Reference order dated 11.8.2016   Issue No. (i)   It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”

9. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant  had already paid the entire loan amount and had agreed to pay the full and  final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized  the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition.  The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles.   Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High  Court of Odisha, the Daimler Financial Services India   taking advantage of the situation had not issued NOC to the complainant.  The complainant hence filed a  Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and  for directing Daimler Financial Services India to issue NOC in respect of the two vehicles.  The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The  Hon’ble National Commission observed that :

“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh,  the cost of service and compensation asked for is Rs. 95,000/-.  Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.

<>10.“In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint, where the value of the goods or services as the case may be, and the compensation, if any, claimed in the complaint, exceeds Rupees One Crore.  As held by a Three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd.,  decided on 07.10.2016, the value of services in such cases, means the sale consideration agreed to be paid by the flat buyer to the builder. The following view was taken by this commission in CC/198/2015 Dushyant Kumar Gupta Vs Today Homes & Infrastructure Pvt. Ltd. and connected matters, decided on 31.01.2017. 

11.  Since this forum lacks pecuniary jurisdiction to adjudicate the claim , various objections taken by the OP regarding the loan in question being business loan having been  obtained by the complainant for his business requirements which is stated to be evident from the loan application

form, loan agreement and end use letter duly singed by the complainant ; and further objection that the complaint is barred by limitation having been filed after more than four years of accrual of alleged cause of action cannot be agitated before this forum. Accordingly theinstant complaint be returned to the complainant to be presented before the appropriate forum having jurisdiction. Copy of thecomplaintbe retainedon record. Copy of this order be sentto the parties as statutorily required. File be consigned to record room.

          Announced on this _____ Day  of  May 2018.