BEFORE THE DISTRICT CONSUMER REDRESSAL FORUM
(DISTRICT FORUM)
UNOKUTI DISTRICT : KAILASHAHAR
C A S E NO. C. C. 09 of 2019
1. SRI NARAYAN SARKAR
Son of late Dhirendra Sarkar
of Halaimura,PS – Kumarghat,
District- Unakoti ,Tripura.
2. SHRI PRASENJIT PAL
Son of late Pranesh Chandra Pal
Kalibari Tilla, Fatikroy
Unakoti District
…......COMPLAINANTS
V E R S U S
1. GENERAL MANAGER
Tripura Scheduled Caste Co-Operation
Development Corporation Ltd.
Lake Chowmuhani, Krishnanagar,
Agartala, West Tripura.
2. The Supervisor
Tripura Scheduled Caste Co-Operation
Development Corporation Ltd.
Kumarghat R.D Block, Kumarghat,
Unakoti Tripura.
….....OPPOSITE PARTIES
P R E S E N T
SHRI J. M. MURASING
PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM
UNAKOTI DISTRICT::KAILASHAHAR
A N D
SMTI. S. DEB, MEMBER
&
SRI P. SINHA, MEMBER
C O U N S E L
For the Complainant : Shri R. R. Kar, Advocate, and
Shri M. K. Arya, Advocate
For the opposite parties : Mr. J. Ahamed, Advocate
Mr. P. K. Pal, Advocate
Mr. K. B. Deb
ORIGINAL DATE OF INSTITUTION :15-03-2019
JUDGMENT DELIVERED ON :19-09-2019
J U D G M E N T
This is a complaint U/S 12 of the Consumer Protection Act filed by the complainant Sri Narayan Sarkar against the opposite parties claiming compensation of Rs.98,000/- along with interest for deficiency in service on the part of the opposite parties.
2. The case of the complainant, as manifested from the complaint petition, is that for development of his restaurant shop the complainant approached the OP No. 2 for providing him loan of Rs. 1,80000/- under LB scheme. Complainant NO. 2 stood as guarantor against the said loan. Complainant No. 2 is a teacher by profession and he consented to the effect that in case of failure of payment of installment by the complainant No. 1 the OPs will have right to deduct the amount from his salary account by giving prior information to him. On 29/10/2018 and 30/10/2018 the complainant No. 1 paid in total an amount of Rs. 18,680/- against his loan account No. 2696 and permanently closed his loan account and verbally paid for clearance certificate, but the office of the OP No. 1 told the complainant No. 1 that they would provide clearance certificate through OP No. 2 within a short time. After 15 days the complainant No. 1 contacted with the Op No. 2 for clearance certificate. But the OP No. 2 informed Complainant No. 1 that clearance certificate could not be given, but advised him to wait for more 10 days as OP No. 2 would collect the same from the Head Office at Agartala. On 01/11/2018 complainant No. 2 noticed that OP No. 1 without sending him any notice deducted an amount of Rs. 4,000/- from his salary account. Complainant No. 2 had the knowledge that complainant No. 1 had already liquidated the loan amount and as such, deduction of Rs. 4,000/- from his account was beyond rule. However, complainant No. 1 contacted with the OP No. 2 to clarify the matter, but the OP No. 2 expressed his inability to help on that issue. Thereafter the complainant No. 1 finding no other alternative went to Agartala and contacted OP No. 1 who assured him that they would provide clearance certificate and return back the deducted amount to the complainant No. 2 within a short time, but practically the same was not given. It is further contended in the complainant petition that on 01/12/2018 again the complainant No. 2 noticed that the OP No. 1 again deducted an amount of Rs. 4,000/- from his salary account without any information. Thereafter the complainant No. 1 contacted with the OP No. 2 to clarify the matter once again, but the OP No. 2 that time too expressed his inability to help in that matter and then the complainant No. 1 again contacted with the OP No. 1, who assured him that they would provide clearance certificate and return back the deducted amount to the salary account of the complainant No. 2 within a short time. Only on 07/12/2018 the OP No. 1 issued clearance certificate in favour of the complainant No. 1, but the deducted amount was not credited to the account of complainant No. 2 and thus both the OPs have rendered deficiency of service to the complainants, particularly to the complainant No. 2 and as such, the complainants prayed for compensation for an amount of Rs. 98,000/- with interest from the OPs for deficiency of service, mental harassment, pain and agony, legal expenses and travel fare.
3. On receipt of the notice opposite parties appeared and resisted the complaint by filing written statement stating, inter alia, that the complaint is not maintainable in its present form and nature in as much as no deficiency in service in the statement of the complainant on the part of the opposite parties in any manner. That the complaint petition hits the ingredients as laid down under sub-section © of section 2 of the Act as the OP Corporation has neither made any unfair trade practice or a restrictive trade practice. That the complainant No. 1 is not a consumer as defined under Sub-section (d)(ii) of the Act in as much as the beneficiary Complainant No. 1 being a member of Schedule Caste community made prayer to the OP corporation in July, 2012 for providing financial assistance for Laghu business and the Corporation sanctioned Rs. 1,80,000/- out of the total project cost of Rs. 2,00,000/- for commercial purpose. Providing of financial assistance to the beneficiary and realization of loan from beneficiary to mandating to give assess refund as alleged is neither a contract for service nor contract of service or having any cut off date to cease the contract and therefore, the very essence of filing complaint U/S 12 of the Act hits maintainability of the complaint under the Consumer Protection Act and hence, it is liable to be dismissed in limine. That, no cause of action has arisen in filing the complaint as the Corporation has already realized the debts and liabilities from the complainants as per terms and condition of the sanction letter as well as loan agreement though it was obtained for commercial purpose under Laghu byabasai scheme to run for getting economic footings of his family and not for private use and as such, the instant complaint petition is not maintainable. That the complainant No. 2 is a guarantor stood for the borrower complainant with a view to secure the loan sanctioned and disbursed public money. In course of continuous process of recovery through salary account of guarantor operating with TGB, Fatikroy Branch it was made excess deductions in November, 2018 and December, 2018 at the rate of Rs. 4,000/- per month and after updating the ledger entry and calculation sheets arriving at final adjustment of subsidy, principal, interest against the loan account the corporation could ascertain that an amount of Rs. 8000/- was credited in excess to the loan account of the beneficiary and accordingly by a letter No. F.10(23)-Corpn/SC/PART-II/12/01 dated 03/06/2019 the excess recovered amount of Rs. 8000/- was refunded by a letter dated 03/06/2019 along with a statement in the account of the guarantor complainant No. 2 vide account No. 8078011807453 maintained in the TGB, Fatikroy Branch and therefore it was by the bonafide reasons some time has taken to refund the excess recovered amount back and as such, the corporation has no latches or negligence for taking sometimes to refund the money and as such the petition is not tenable in law. There has been no latches or negligence on the part of the OP-Corporation to issue the clearance certificate as well as refund of excess amount of Rs. 8000/- to the source to which it was recovered and it was by bonafide and obvious reason some time was consumed, but the Op-Corporation never denied or remained reluctant to refund the excess amount or issuing clearance certificate and hence the complaint is not maintainable or tenable in any way and it is liable to be dismissed with cost.
4. In order to substantiate the claim, complainant examined himself as PW 1. In his deposition he stated the facts as was put down in his complaint petition. During his re-examination he has exhibited the following documents :-
i. Original money receipt marked Exbt. 1/1 & 1/ 2.
ii. Loan clearance certificate marked Exbt. 2.
iii. Intimation letter addressed to the General Manager, SC Corporation marked Exbt. 3.
During cross complainant No.1 Sri Narayan Sarkar stated that he took a loan from the SC Corporation for the purpose of business, namely, Laghu business on 01/09/2012 and taking that loan he opened a restaurant business. Interest of the loan was 6% pa. He obtained the total loan amount of Rs. 1,80,000/- and subsidy was allowed for Rs. 10,000/-. During cross complainant No. 1 further stated that one Sri Prasenjit Pal, a teacher under Education Department of Tripura, stood as a guarantor. Complainant No. 1 admitted that it is the system that if the loanee fails to repay the loan amount than the guarantor shall be liable to pay the loan amount. He further stated in cross that it was out of his knowledge as to whether the DDO of his guarantor had issued two numbers of cheque for Rs. 4000/- each and sent to the Corporation against his loan account or not. He further admitted that his loan application was jointly signed by him and his guarantor. He also admitted that on 03/06/2019 DDO of his guarantor again deposited the amount of Rs. 8000/- to the bank account of his guarantor.
Complainant No. 2 Sri Prasenjit Pal has also examined himself as PW No. 2 and stated that on 29/10/2018 and 30/10/2018 by paying an amount of Rs. 18,680/- complainant No. 1, the loanee closed his loan account, but he noticed that OP No. 1 without sending any notice deducted an amount of Rs. 4000/- from his salary account even after liquidation of the loan amount by the complainant No. 1. When the complainant No. 1 took up the matter of deduction with the OP No. 2, he expressed his inability to help and then the complainant No. 1 contacted with OP No. 1 who assured him that within a few days clearance certificate would be issued and the deducted amount would also be credited in his account. Complainant No. 2 further stated that again on 01/12/2018 he noticed deduction of Rs. 4000/- from his salary account and OP No 1 & 2 did not do anything to resolve the issue. It is further stated in the evidence by the complainant No. 2 that on 07/12/2018 OP NO 1 issued clearance certificate in favour of the complainant No. 1, but he was not given back the deducted amount and before filing of the case no amount was credited in his salary account. As the OP No. 1 deducted the amount of installment from his salary account even after liquidation of the loan amount by the complainant No. 1 without informing him, the OPs have rendered deficiency of service by harassing him unnecessarily and as such, he prayed for compensation from the part of the opposite parties.
Complainant No. 2 was cross examined by the OPs and during cross examination he stated that he stood as guarantor against the loan of Sri Narayan Sarkar taken from the SC Development Corporation of Tripura. His DDO deducted Rs. 8000/- from his bank account and sent the same to the corporation against the loan account of Sri Narayan Sarkar, but subsequently on 03/06/2019 the said amount of money again was deposited to his bank account. In his cross examination he admitted that in his examination in chief on affidavit given on 11/07/2019 he did not mention that he was refunded back the amount of Rs. 8000/- which was deducted from his bank account by the DDO and deposited in the loan account of Sri Narayan Sarkar.
From the side of the opposite parties no evidence has been led.
5. The points to be determined in the case at hand are as follows:-
1. Whether the complaint is maintainable?
2. Whether the opposite parties have rendered deficiency of service towards the complainants in any way and whether the complainants are entitled to compensation from the part of the opposite parties?
6. Heard argument of both sides. Learned counsel for the complainants argued that the opposite parties have not rendered proper service to the complainant, firstly by not issuing clearance certificate even after liquidation of the loan amount and on repeated approach by the complainant to them and secondly the opposite parties intentionally even after paying off of the loan amount by the complainant No. 1 have deducted an amount of Rs. 8000/- in two spells from the account of the Complainant No. 2, the guarantor of the loan and as such, the opposite parties are deficient in service towards the complainant and consequently the complainants are entitled to compensation.
7. On the contrary, learned counsel of the opposite parties argued that the complaints are not consumer as per provision of consumer Protection Act, 1986 and moreover, the OPs have not rendered any deficiency of service towards the complainants as because OPs have refunded the amount to the complainant No. 2 within a short time when they noticed that out of bonafide mistake the amount of Rs. 8,000/- was deducted from the account of the complainant No. 2 and therefore, even being consumers also the complainants are not entitled to any compensation from the Opposite parties.
DECISION AND REASONS FOR DECISION
8. In course of argument, learned counsel of the opposite parties strongly argued that the complainants are not consumers as per provisions of Sub section 2(d)(ii) of the Act as the beneficiary complainant No 1 being a member of Scheduled caste community made prayer to the OP-Corporation in July 2012 for providing financial assistance for laghu business and the OP- Corporation sanctioned Rs. 1,80,000- out of total project cost of Rs. 2,00,000/- for commercial purpose and as such, they are not entitled to any compensation.
The argument of the learned Counsels of the opposite parties being so this Forum at the very outset needs to determine the status of the complainant, i.e., whether the complainants are consumers or not.
As per section 2 (d)(i)(ii) of the Consumer Protection Act, 1986 "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 purposes 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}.
9. On reading of the above, it is clear that a person is a consumer who buys goods or hires or avails of services for consideration. In the case in hand, the complainant did not buy any good or hire or avail any service from the opposite parties. From the opposite parties he only availed a loan, which was duly sanctioned by the opposite parties. The complainant availed the loan for commercial purpose for his restaurant business and as such, he can not be termed as consumer and the complainants are simply borrower. The judgment referred by the side of the complainants (reported in (2006)1 CPJ 176, Karnataka SC/ST Development Ltd. and anr.. Versus Channabasappa and anr.) does not come for any aid as because the nature and fact and circumstances of the case referred to in the judgment and that of the present one are not alike. In the judgment referred to by the complainant side Hon'ble National Commission deemed the respondent as the consumer of the petitioner, SC/ST Development Corporation because the respondent was supposed to get service from the petitioner in consideration of money, but in the case in hand complainants did not hire or avail of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment. In view of the discussion as elucidated above, it is held that the complainants not being the consumers the instant complaint preferred by them is not maintainable and as such, the complaint petition being devoid of merit stands dismissed.
Moreover, from meticulous scanning of the record, including the evidence of the complaints and the documents it is found that there is no gross deficiency of service on the part of the opposite parties towards the complainants. It is a fact that the opposite parties took much time to issue clearance certificate to the complainant No.1 and it is also a fact that the opposite parties deducted excess amount from the salary account of the complainant No.2 even after liquidation of the loan amount by the complainant No.1, but on detection of the mistake of excess deduction of the amount the opposite parties arranged to refund the excess deducted amount to the account of the complainant No.2, which has been admitted by the complainant No.2 himself also in his evidence during cross examination. It is, however, proved that the opposite parties took much time in refunding the amount, but since neither the complainant No.1 nor the complainant No. 2 is consumer, as already determined above, this Forum is of the view that the complainants are not entitled to any compensation, as claimed for.
However, it is observed by this Forum that there are some latches on the part of the opposite parties in timely issuance of certificate to the complainant and the manner by which excess amount was deducted from the account of the complainant No. 2 also indicates that opposite parties are somewhat indifferent, which is not at all expected from a Welfare Organization, namely, Tripura Schedule Caste Cooperative Development Corporation Limited. Therefore, it is viewed by this Forum that the opposite parties must resort to due care and be careful so that such lapses/latches may not recur in case of any other person like that of the complainants.
ORDER
10. In the result, the complaint filed by the complainants stands dismissed. They are not at all entitled to any compensation from the part of the opposite parties. However, the opposite parties are to act upon the direction of this Forum as given above.
11. Furnish copy of this judgment to the complainants and the O.Ps free of cost through their respective learned counsels.
ANNOUNCED
(J. M. MURASING)
PRESIDENT
(P. SINHA) (S. DEB)
MEMBER MEMBER
