Haryana

Karnal

605/2011

Sanjay Kumar - Complainant(s)

Versus

City Financial conumer Services Finance India Ltd - Opp.Party(s)

Sh. S.K. Bhargava

04 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.605 of 2011

                                                             Date of instt.:27.09.2011

                                                              Date of decision:04.01.2017

 

Sanjay Kumar son of Shri Ram Singh resident of village Abdullapur District Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

City Finance Consumer Services Finance India Ltd. SCO no.233-234, Sector-12, Urban Estate Karnal through its Manager.

                                                                        ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. S.K.Bhargawa  Advocate for the complainant.

                    Sh. Rahul Bali Advocate for the Opposite party.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that on 15.6.2007 he obtained a loan of Rs.31,334/- from the opposite party for running his Kiryana shop for his livelihood. The loan amount was to be repaid in 20 installments of Rs.1789/-each. Two installments were paid in advance. At the time of raising the loan, he had also given 18 blank cheques to the opposite party from his post office savings account no.605767. The opposite party got six cheques encashed for payment of six installments upto 11.02.2008. Thereafter, he paid the remaining installments regularly upto 21.11.2008. In the month of July 2009, he went to the office of opposite party and deposited installment of Rs.1789/-. Thereafter, he requested the opposite party to return the remaining 12 cheques after receiving the balance two installments i.e. Rs.3578/- and then issue  “No Dues Certificate”. The opposite party told that the cheques were lying in the head office and the same would be returned after completion of the formalities. He visited the office of opposite party number of times, but the matter was prolonged on one pretext or the other. On 15.09.2011, the officials of the opposite party visited his house and raised demand of Rs.25,000/-. Thereafter, he visited the office of the opposite party and requested for details of the amount of Rs.25,000/-, but instead of giving details he was threatened that if the amount of Rs.25,000/- was not paid he would be implicated in false criminal cases on behalf of the cheques in different states. Such acts and conduct on the part of the opposite party amounted to deficiency in service, due to which he suffered mental agony and pain.

2.                Notice of the complaint was given to the opposite party, who appeared and filed written statement controverting the claim of the complainant. It has been submitted that the complainant had availed loan of Rs.35,000/- on 9.6.2007 and the said loan was to be repaid in 36 installments of Rs.1789/- each. The opposite party encashed the installments by way of cheques for the months of July, 2007 and October, 2007 to January, 2008. Thereafter, the complainant deposited two installments of August, 2007 and September, 2007. Then opposite party received regular installments from February, 2008 to June, 2008. The complainant had not paid the installments falling due in July, 2008, September, 2008 and October, 2008. The opposite party again received installments of August, 2008, November, 2008 and December, 2008 from the complainant. Finally, after payment of 16 installments upto December, 2008, the complainant defaulted in payment and an amount of Rs.43,446/- was outstanding against him on 19.01.2012. The cheques of the complainant would be returned and “No Objection Certificate” would be issued after depositing outstanding loan amount. The complaint has been filed within the oblique motive to avoid the said liability. The other allegations made in the complaint have been specifically denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C13 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Priyaranjan authorized representative Ex.O1 and documents Ex.O2 and Ex.O3 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant had obtained loan from the opposite party for running his Kiryana shop for his livelihood and the same was to be repaid in  monthly installments of Rs.1789/-each. He had deposited 18 blank cheques with opposite party out of six cheques were got enchashed for six installments. As per the case of the complainant, he had paid the remaining installments regularly upto 21.11.2008. Thereafter, he deposited the installments of Rs.1789/- in July, 2009. Then, he requested the opposite party to return the remaining 12 cheques after receiving the balance two installments i.e. Rs.3578/- and issued “No Dues Certificate”. On 15.9.2011 the officials of the opposite party asked him to deposit Rs.25,000/-. On the other hand opposite party has submitted that after payment of 16 installments upto December, 2008 the complainant defaulted in payment and an amount of Rs.43,446/- was outstanding against him on 19.01.2012, therefore, the cheques could not be returned and “No Dues Certificate” could not be issued.

7.                Learned counsel for the opposite party has put a great thrust upon the contention that as per the case of the complainant as putforth in para no.2 of the complaint, he had obtained loan from the opposite party for running his Kiryana shop. Thus, it is clear that he had obtained loan for commercial purpose. Therefore, he does not fall within the definition of consumer as per provision of section 2(1)(d) of the Consumer Protection Act and as such the complaint is not maintainable and liable to be dismissed on this score alone. In support of his contention he placed reliance upon  M/s Gati Limited & Anr. Versus M/s Brbee Productgs Private Ltd. 2015(2) CPR 421.

8.                To wriggle out the aforesaid contention, learned counsel for the complainant vehemently argued that the loan was obtained by him for running his Kiryana Shop for his livelihood, by means of his self employment and not for making profits. Therefore, his case falls within the explanation under section 2(1)(d) of the Consumer Protection Act and as such is covered under the definition of consumer and his complaint is very well maintainable. In this regard, he relied upon Sanjay Kumar Joshi Vs. Municipal Board, Laxmangarh & Anr. 2014 (3) CPC 496, Asia Art Printers Vs. K.P.Dharmaian 2014(2) CPC 534  and Hindustan Motors & Others Vs. M/s Chinmaya International Foundation & Others 2015(3) CLT.

9.                In M/s Gati Limited’s case (supra)  the complainant was trading for the sale of honey and booked a consignment of 240 packets containing 130kg honey each, to be delivered in Chennai. The purchaser did not make the payment to the complainant, therefore, it requested the opposite party not to deliver the consignment to the purchaser  and rebook the same to its place, but the opposite party asked him to deposit an amount of Rs.1,19,309/- for the purpose of rebooking the consignment. The payment was not deposited by the complainant, therefore, the opposite party delivered the consignment to the purchaser against the cheque. When the said cheques was presented to the bank, the same was dishonored. Under such circumstances, it was held by Hon’ble National Commission that the complainant company was seeking to make profit by selling honey to M/s Afira Traders and it was for the purpose of completing the said transaction that the consignment containing honey was booked with the opposite party. It is not necessary that hiring of the service should directly generate profit for the service hirer. What is important is whether the activity is aimed at making profit or not. Selling honey was an activity undertaken by the complainant to earn profit and it was in furtherance of the said activity, that the service of the opposite party was hired. Therefore, engagement of the complainant company was for a commercial purpose.

10.              In Sanjay Kumar Joshi’s case (supra) a plot was purchased in open auction by the complainant for the purpose of earning livelihood by self employment. A civil litigation was pending in Civil Court with regard to the plot at that time. Complainant claimed refund of security and sale consideration. Under those circumstances, it was held by Hon’ble Supreme Court that commercial purpose of the plot was not proved. Previous judgment of the Hon’ble Supreme Court in National Seeds Corporation Ltd. Vs. M.Madhusudan Reddy reported in (2012) 2 SCC 506= 2012(1) CPC 190 S.C.,  was discussed, wherein it was held that if any person who is earning his livelihood by his self employment has entered into a commercial transaction, is a consumer within the definition of the Act. In Hindustan Motors’s case (supra)  car was purchased by Educational Institution. The opposite party raised objection that the complainant being an Educational Institution cannot be treated as consumer and the vehicle was purchased for commercial purpose, therefore, complaint was not maintainable. Under those circumstances, it was held by Hon’ble Kerla State Consumer Disputes Redressal Commission, Thiruvvananthapuram that the opposite party failed to show that the complainant purchase the vehicle for commercial purpose, therefore, the complaint was maintainable. In Asia Art Printers’s case (supra)  the complainant was registered exporter of handicraft items and on receipt of an order  from a foreign buyer for supply of 50,000 notebooks, he contacted opposite party to manufacture the said notebooks by a stipulated date and place and order in writing for the same and paid an amount of Rs.4,40,000/- as advance. However, the opposite party failed to supply the notebooks, leading to cancellation of the order by foreign buyer, as a result of which complainant suffered loss. The opposite party raised the objection that the complainant being a registered exporter of handicrafts items, the transaction was of a commercial nature involving the resale of the goods, therefore, he was not a consumer as per definition of consumer in section 2(1)(d) of the Consumer Protection Act. Under those circumstances, relying upon the judgment of Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, 1995(2) CPC 2 S.C.C.583  it was held by the Hon’ble National Commission that the complainant was a registered merchant exporter under the Export Promotion Council for handicrafts, but he was a single individual involved in earning his livelihood by placing and procuring orders for the purpose of export and was, therefore, very much a ‘consumer’. In Ashutosh Sood’s case (supra).  The complainants were running professional activities from a commercial booth measuring 6 sq. yards and they booked commercial space measuring 885 sq. ft. with opposite parties. The opposite parties raised objection that the space was booked for commercial purpose, therefore, the complainants were not consumer. Under those circumstances, Hon’ble State Consumer Disputes Redressal Commission, U.T.Chandigarh held that with the passage of time, the requirement of complainants had increased that if they had booked commercial space with the opposite party, that was apparently to meet their increased requirements and the same was clearly to earn livelihood. That was not a case where the complainants were having adequate space and they invested to expand their business to earn huge profits. It was further held that it is not the value of the goods, that matters, but the purpose for which the goods are bought and put to use. The words employed in the explanation, viz, “uses them by himself”,  “exclusively” for the purpose of earning livelihood and by means of self-employment, make the intention of the Parliament abundantly clear that goods must be used by employing himself, for earning his livelihood.

11.              The facts of the present case are to be analyzed keeping in view the aforediscussed proposition of law. The complainant was running a Kiryana shop. As per the case of the complainant he had obtained loan of Rs.31,334/-. The opposite party has alleged that loan of Rs.35,000/- was advanced.  A perusal of copy of the agreement Ex.O2 shows that the complainant had approached the opposite party for loan for personal requirements. It was nowhere mentioned in the agreement that the loan was obtained for commercial purpose. The complainant in his complaint specifically mentioned that the loan was raised for running his Kiryana shop for his livelihood. It is important to highlight that the opposite party in the written statement has not raised the specific plea that the loan was raised by the complainant for commercial purpose and not for earning  his livelihood. As there is no specific denial on the part of the opposite party, the fact that the loan was obtained by the complainant to earn his livelihood, is deemed to have been admitted by the opposite party. Mere fact that the loan was raised for running Kiryana shop does not lead to the conclusion that the loan was for commercial purpose. The opposite party has neither alleged nor there is any evidence on record that the complainant had employed some persons for running his Kiryana business. The fact that he obtained a loan of Rs.31,334/- or Rs.35000/- as alleged by the opposite party, in itself indicates that the complainant was running small Kiryana shop to earn his livelihood by way of self employment. The complainant has also filed affidavit Ex.C1 in support of his plea. His evidence by way of affidavit has gone unrebutted and unchallenged and there is no reason to disbelieve the same. The proposition of law laid down in the authorities cited on behalf of the complainant fully cover the facts of the present case, whereas the authority cited by the learned counsel for the opposite party does not cut any ice in its favour under the facts and circumstances of the case. Consequently, the argument advanced by the learned counsel for opposite party cannot be accepted being devoid of force. Accordingly, it is held that the complainant was consumer of the opposite party.

12.              As per the case of the complainant, only two installments of Rs.3578/- were due against him, but on 15.9.2011 officials of the opposite party raised demand of Rs.25,000/- without giving details. The opposite party has produced the copy of the accounts statement of complainant Ex.O3. This document has not been authenticated and no certificate as required under law  has been given that the document is true and correct copy of the statement of accounts, therefore, no importance can be attached to the same.

13.              Learned counsel for the complainant contended that even if it is accepted that a loan of Rs.35000/- was advanced by opposite party to the complainant, then also such loan could be recovered in 26 installments, if the agreed rate of interest 27.98% (reducing) is accepted as correct. He has also produced a calculation sheet in this regard, wherein the interest has been calculated at the said rate. Learned counsel for the opposite party could not produce the exact calculation regarding installments of the loan amount at agreed rate. Even no fault could be found in the calculation sheet filed by the learned counsel for the complainant. Therefore, it is to be considered that the loan amount was to be repaid in 26 installments of Rs.1789/- each instead of 36 installments as claimed by the opposite party. The complainant further submitted that loan of Rs.31,334/- was advanced as is evident from the copy of the post office pass book Ex.C2 and two installments were deducted in advance. However, there is no evidence regarding deducting two advance installments, but the fact remains that only an amount of Rs.31,334/- was deposited in the account of the complainant as loan. It is also admitted fact that the complainant had paid 16 installments, though not on the due date. Therefore, the opposite party is entitled to recover the balance installments alongwith interest on delayed payments. Till the entire loan amount is repaid by the complainant as per the terms of the agreement, the opposite party is not bound to issue the ‘No Dues Certificate’. The complainant would be entitled to get ‘No Dues Certificate’ and return of his unutilized cheques after depositing the balance loan installments alongwith interest on delayed payments.

14.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:04.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member