BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.870 OF 2009 AGAINST C.C.NO.83 OF 2007 DISTRICT FORUM-II VIJAYAWADA
Between:
1. ICICI Bank Limited rep. by its Manager
#38-8-17, II Floor, Opp. All India Radio
M.G.Road, Vijayawada-10
2. ICICI Bank Limited, rep. by its Manager
# 103-A, I Floor, CBH Compound
Visakhapatnam-008
3. ICICI Bank Limited, RPAG,
Division, ICICI Bank Towers
II Floor, # 1-11-256, Street No.1
Begumpet, Hyderabad-082 Appellants/opposite parties
AND
Consumer Guidance Society
rep. by its Managing Trustee,
S.V.Paradhasarathi Rao
D.No.56-11-13/1, 1st Floor,
Sri Devi Complex, YVR Street
Opp. Donka Road, Patamata
Vijayawada Respondent/complainant
Counsel for the Appellant Sri J.Lokesh Reddy
Counsel for the Respondents Sri Venkat Raghu Ramulu
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
TUESDAY THE FIFTEENTH DAY OF NOVEMBER
TWO THOUSAND ELEVEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite parties have filed appeal in challenge to the order of the District Forum which had fastened the appellants with liability to pay a sum of `22,990/- towards the extra amount collected from the respondent society and costs of `1500/-. The District Forum further directed to deposit `25,000/- to Consumer Welfare Fund under the control of Joint-Collector, Krishna.
2. The factual matrix of the case is the respondent is the non-profit trust registered under the Indian Trust Act established for promotion of education among the poor and the needy. In order to provide transport to the students the respondent purchased an Omni Bus by availing loan amount of `5 lakh on account of Sri Seva Nagaiah Memorial College from the appellants by two separate agreements. The respondent society requested the appellants that they are ready to close the loan account prematurely by paying balance amount. The appellant no.1 informed the respondent society that it should get permission from its regional office for pre-closure of the loan account and requested the respondent to wait for the instructions from the appellant no.2. There was no response from them even after lapse of 30 days. The respondent stopped payment of monthly instalments as suggested by the concerned staff of the appellant no.1 with a view to clear the total loan amount. Meanwhile the appellants seized the vehicle and made the respondent society to pay the balance amount due and an additional amount of `31,958/-. The respondent society had to pay the amount to secure release of the vehicle.
3. The appellants resisted the case contending that the respondent society defaulted payment of instalments as agreed in the Loan-cum-Hypothecation agreements thereby violated the terms and conditions for the loan agreement. Inspite of repeated remainders the respondent society failed to pay dues. The appellants authorized Lalitha Finance Links to take back the possession of hypothecated vehicle bearing registration No. AP 16 PV 4119 and accordingly the vehicle was seized on 29.11.2006. Subsequently the appellants pre-closed the entire loan account and issued a pre sale notice dated 30.11.2006 to the respondent society demanding to settle the loan account. The respondent society voluntarily paid an amount of `2,73,290/- with regard to the loan account NO.LVVJW00004076317 and an amount of `60,561/- with regard to loan A/c No.LVVJW00004076311 and got the vehicle released on 4.12.2006 without any protest. As per agreement the respondents have right to take possession of the vehicle on default of payment of installments and to sell the same in public auction. They are also entitled to recover the expenses from the respondent society. The agreement empowers the appellants to collect over due interest, cheque dishonour charges and EMI due. Pre closure charges, possession charges, godown charges check dishonour charges have come to `31,998/-. There is no deficiency of service on the part of the appellants.
4. On behalf of the respondent society, S.V.Pardhasaradhi Rao, the Managing Trustee has filed his affidavit and documents Exs.A1 to A10. On behalf of the appellants, C.K.Bharat, the Collection Manager of the appellant no.1 has filed his affidavit and documents Exs.B1 to B9.
5. Aggrieved by the order of the District Forum, the opposite parties have filed the appeal contending that whatever charges levied on the respondent society are levied legally and as per the terms and conditions of the agreement and that Exs.B7 and B8 statement of accounts show the bounce charges and over due charges.
6. The points for consideration are:
1) Whether the complaint is maintainable by the appellant trust?
2) Whether there was any deficiency in service on the part of the respondents?
3) To what relief?
7. POINT NO.1 The appellant trust purchased Omni Bus bearing No.AP 16 TV 4119 by availing loan facility from the respondents. A total amount of `5 lakh was availed under loan-cum-hypothecation agreement. The appellant trust deposited in payment of instalments as a result of which the respondent had repossessed the vehicle on 29.11.2006 and after issuing effecting pre-closure of the entire loan of the appellant trust, the respondents issued pre-sale notice on 30.11.2006 subsequently to which the appellant trust paid an amount of `2,73,290/- under loan A/c No. LVVJW00004076317 and an amount of `60,561/- A/c No.LVVJW00004076311 without any protest.
8. The appellant is a trust registered under Indian Trusts Act 1882, cannot be considered as complainant and it cannot be held that the appellant trust can invoke the jurisdiction of Consumer Forum under the Consumer Protection Act. The Hon’ble National Commission in “ Pratibha Pratisthan & Ors Vs Allahabad Bank & Ors” reported in IV (2007) CPJ 33 (NC) held that the complaint filed by a trust is not maintainable under the provisions of the Consumer Protection Act. It was held that:
Further, in support the learned counsel for the opposite party bank has rightly pointed out an observation from DJ Hayton, Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies, wherein it has been observed that –
“A trust, unlike a company, has no legal personality; thus, it cannot own property for entering into contracts, sue or are sued. It is the trustees who own the trust property, enter into contracts, sue or are sued. A trustee as such has no distinct legal personality in his representative capacity separate from himself in his personal capacity”
Considering the aforesaid definition of the word, “person”, a public trust is not ‘person’ which can be considered to be a ‘consumer’ entitled to file complaint before the Consumer Forum. The reasons are:
1) Trust is not included in the definition of the word ‘person’. The Legislature included cooperative society under the definition person but not ‘public trust’;
2) secondly, trust is not a legal entity.
Hence the complainant, Pratibha Pratishthan Trust, which is registered under the Bombay Public Trust Act, 1950, cannot be considered to be ‘person’ which can file a complaint under the Consumer Protection Act 1986.
9. In the aforementioned case, the National Commission has analyzed the status of a trustee qua consumer under the provisions of the Consumer Protection Act. The National Commission held that the trust is not included within the definition of ‘person’ and the trust is not a legal entity. It is held unlike trust, a cooperative society is included within the meaning of ‘person’ under Section 2(1)(m) of the C.P.Act. It was held that trust compared to society on different footing and as such it cannot maintain complaint before the Consumer Forum.
10. On the same analogy we hold, the appellant trust cannot file a complaint invoking the provisions of the Consumer Protection Act and as such the complaint is not maintainable. The appeal is liable to be dismissed for the reasons that the appellant trust is not the person entitled to file the complaint under the C.P. Act and also that all the trustees have not been made parties as the complainants.
11. POINTS NO.2 and 3 In view of the discussion held under point no.1 and the complaint is held to be not maintainable, there need be no discussion under these points as the point no.1 has been decided against the respondent trust.
12. In the result, the appeal is allowed. The order of the District Forum is set aside. Consequently the complaint is dismissed. No costs.
MEMBER
MEMBER
Dt.15.11.2011
KMK*
