Punjab

StateCommission

FA/940/2013

Aasha Rani - Complainant(s)

Versus

Fullerton India Credit Co. Ltd. & another - Opp.Party(s)

Ashok Jindal & Sandeep Singh

09 Jul 2015

ORDER

                                                                                                            2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

                              First Appeal No.940 of 2013

 

                 Date of institution   :   30.08.2013      

        Date of decision     :  09.07.2015

 

Aasha Rani wife of Daulat Ram, Proprietor of M/s Ambika Medicos, Malout, Tehsil and District Sri Muktsar Sahib.

 

                                                                  …….Appellant/Complainant

 

Versus

1. Fulluerton India Credit Company Limited Building No.11, First Fir,         Solitaria Corp. Park, Andheri Ghatkopar Link Road, Chakala,   Andheri (E) Mumbai-400093 through its Director/Chairman.
2. Branch Manager, Fullerton India Credit Company Limited G.T.    Road, Malout District Sri Muktsar Sahib now at 2nd Floor Above      Religare Officer Street No.4, Circular Road, Abohar (Punjab) Tel.          No. +919878420457.

 ……Respondents/Opposite Parties

 

First Appeal against the order dated 18.07.2013 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib.

 

Quorum:- 

 

          Shri Gurcharan Singh Saran, Presiding Judicial Member

          Smt. Surinder Pal Kaur, Member

 

Present:-

 

          For the appellants       : Sh. Sandeep Singh, Advocate

          For the respondent    : Sh. Sandeep Suri, Advocate

         

MRS. SURINDER PAL KAUR, MEMBER:-

ORDER

          The appellant/complainant (hereinafter referred as the complainant) has filed the present appeal against the order dated 18.07.2013 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib, (hereinafter referred as “the District Forum”) in Consumer Complaint No.01 dated 09.01.2013 vide which the complaint filed by the complainant was dismissed.

2.                A consumer complaint was filed by the complainant that she being the Proprietor of M/S Ambika Medicos, availed the loan facility of Rs.4,80,000/- from the respondents/opposite parties (hereinafter referred as the OPs) and  OPs took her signature on various bank papers, cheques forms to complete all the relevant formalities for availing the facility of the said loan. As such she is the consumer of the OPs. She  was to refund the loan amount in  33 EMIs of Rs.19643/- each and she was issued the cheque book of HDFC Bank Malout at the time of availing the loan but later on she cancelled  her account in HDFC Bank and  informed the OPs.   A new cheque book of Punjab National Bank was got issued and deposited Rs. 561/- on  4.6.2011, as cheque swapping fee. When the Ops, presented the cheques in HDFC Bank and the same had bounced.  Resultantly, the OPs forced the complainant to pay extra bouncing charges and penalty upon her and also forced her to deposit 36  EMIs of Rs.19643/- each whereas she was to deposit 33  EMIs. When she approached for the issuance of No Due Certificate, then the OPs forced her to deposit an amount of Rs.2,87,985/- extra from the installments. She deposited the said amount on 27.10.2012 and made a request  for the issuance of No Due Certificate. But the OPs  put off the matter  on one pretext or the other. She also made a request to the OPs to return the original documents which were deposited by her at the time of availing the loan facility but they flatly refused to do so.  With the aforesaid allegations, she filed the complaint against the OPs before the District Forum seeking the following directions to the OPs:

1. to refund Rs.3,46,914/- which was got deposited in excess by the complainant along with interest @ 12% P.A. from the date of deposit till actual realization;
2. to refund the excess deposit of penalty amount ;
3. to return original documents which were received by the OPs at the time of availing loan facility;
4. to issue the No Due Certificate;
5. to pay of Rs.50,000/- as compensation on account of mental tension and harassment;
6. to pay Rs.15,000/- as litigation expenses.

3.                The complaint was contested by the OPs.  They took the legal objections that  the complainant availed the loan for business purpose and that same being a totally commercial transaction  did not fall within the ambit of Consumer Protection Act. The District Forum and the State Commission had no jurisdiction to entertain the complaint which was beyond the scope of Consumer Protection Act. They pleaded that the complainant made only allegations which were not supported by any documentation or any proof of payment.  There was no evidence that any excess amount  was demanded by the OPs.  Whereas, OPs placed on record detailed account statement. The complainant availed the loan in January 2011 which was payable in 36  EMIs of Rs.19,643/- each. It was evident that the loan was to be continued till 2014. Hence there was no occasion of the complainant of having paid an excess amount of Rs.3,46,914/- as claimed by the complainant. There was no deficiency in services on the part of the OPs they prayed for dismissal of the complaint.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of her allegations, the complainant had tendered into evidence affidavit C-A other documents Ex.C1 to Ex.C4. On the other hand the OPs had tendered into evidence affidavit of Sunil Kumar, Collection Officer, Ex.OP-1 and documents Ex.OP-2 to Ex.OP-7.

6.                After going through the allegations alleged in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum dismissed  the complaint of the complainant vide order as referred above

7.      Aggrieved against the order passed by the learned District Forum, the appellant / complainant has preferred the present  appeal.  

8.                We have heard the learned counsel for both the sides and have carefully gone through the record of the case.

9.                It was submitted by the learned counsel for the complainant that the Ld. Distt Forum had decided the complaint in very casual manner and the same was based on surmises and conjectures .The Ld. District Forum had overlooked that the Ops had violated the terms and conditions of the agreement and the Rules and Regulations of the R.B.I.  He prayed for the acceptance of the appeal and set aside the impugned order.

10.              Before averting to the grounds of appeal the first and for most question before this commission is whether the complainant falls under the definition of consumer or not because the OPs had raised the objection in the written reply that the complainant availed the loan for business purposes, therefore, she does not fall within the definition of 'Consumer'.  The OP proved on record "Instruction for Disbursement of the Loan Amount" as Ex OP3 where it was specifically mentioned that application for grant of loan facility for 'Business Use' and that document was duly signed by the complainant. The definition of the ‘consumer’ has been defined in Section 2(1)(d) of the Act as under:-

                   “2(1)(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 purposes;

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 purposes of earning his livelihood by means of self-employment;”

11.              According to the complainant she is Proprietor of M/S. Ambika Mediocs and she nowhere mentioned in the complaint that if the loan was taken for business use it was taken exclusively for the purpose of earning her livelihood by means  of self employment. Therefore, the transaction is to be treated as commercial transaction. Consequently, she does not fall under the definition of ‘consumer’. Therefore, the complaint was not maintainable under the Consumer Protection Act. No matter complaint was dismissed on other grounds.

12.              In view of above, we do not find any merit in the appeal and the same is hereby dismissed.

13.              The arguments in this appeal were heard on 28.05.2015 and the order was reserve­d. Now, the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                               (GURCHARAN SINGH SARAN)

                                                  Presiding Judicial Member

                                                                                    

 

                                                       

                                                  (SURINDER PAL KAUR)                                                                                                                                               Member

July 9, 2015

RK2