DATE OF FILING : 18/11/2020
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI
Dated this the 11th day of August 2022
Present :
SRI.C.SURESHKUMAR PRESIDENT
SMT.ASAMOL P. MEMBER
SRI.AMPADY K.S. MEMBER
CC NO.160/2020
Between
Complainant : Murugrsan, S/o Natarajan,
12/237, North Division Chokkanadu Estate,
Kannandevan Hills, Munnar, Idukki,
Devikulam Taluk, Pin – 685 612.
(By Adv.Fenil Jose)
And
Opposite Party : 1 . HDFC Bank, Retail Loan Division,
Kandirickal Oliver Castle Near Mundamattam Fuels,
Muvattupuzha Road, Thodupuzha,
Represented by its Manager.
2 . George Portfolio Manager,
HDFC Bank, Retail Loan Division,
Kandirickal Oliver Castle Near Mundamattam Fuels,
Muvattupuzha Road, Thodupuzha,
Represented by its Manager.
O R D E R
SRI.AMPADY K.S., MEMBER
This complaint is filed raising the following allegations against opposite parties.
.
1 . The complainant is running a tourist centre at Munnar as a self employment in the name and style Inspire Holidays. The first opposite party is a new generation banking company having registered as per the Banking Companies Act having its branch office at various places in Kerala including Thodupuzha. The branch manager is competent to represent the first opposite party. The second opposite party is the portfolio manager under the first opposite party.
(Cont......2)
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2 . The complainant in the year 2018 vide Loan No.57660386 was sanctioned a business loan by the first opposite party. The tenure of the loan was 40 months and the monthly instalment was Rs.71455. It was agreed to repay the loan. The complainant re paid the loan till the Covid – 19 lock down without any default.
3 . Due to the Covid – 19 lock down, the RBI has announced moratorium of 6 months for the loan repayment and the complainant was applied for the moratorium vide request no. DMOO5852945. The application for the loan moratorium was sanctioned by the opposite parties for the period commencing from March 2020 to further 6 months period.
4 . Immediately after taking the loan, the 2018 flood devastated the tourism in Munnar and in spite of all the adverse conditions, the complainant re-paid the loan instalments without default. The flood repeated in the year 2019 and then also the complainant was prompt in repaying the loan.
5 . Due to the lock down, the income of the complainant was zero and the complainant has no means to repay the loan. In July 2020, the second opposite party approached the complainant and offered that the complainant's MSME loan account is eligible for 20% top up of the principal loan amount if the complainant pays the pending dues. It was further offered that there is a holiday of 2 years to re pay the top up loan. It was assured by the second opposite party and the collections staff of the opposite parties Mr.Lalu that, if the complainant pays Rs.138900/- the complainant's account will be credited with Rs.223170/- within 7 days of the payment of the arrears in the loan. Accordingly the complainant remitted Rs.138900/- vides cash receipt No.617582021113030 and cleared all the arrears in the loan. After paying the dues the complainant was asked to reach Thodupuzha office to sing the loan documents and the complainant signed all the documents required by the complainant.
6 . However to the dismay of the complainant the opposite parties did not transfer the top up loan as agreed by the opposite parties. The opposite parties also did not provide the 6 months moratorium of the loan instalments as provided by the RBI. In spite of repeated communications and telephonic conversation the
(Cont......3)
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opposite parties did not provided the loan. Instead of giving the loan the opposite parties are threatening the complainant for the loan instalments.
7 . On 09/10/2020 the first opposite party sent a notice to the complainant demanding the repayment of the entire loan amount outstanding in the loan account aggregating an amount of 1137840 within 7 days of the receipt of the notice. On 20/10/2020 the opposite parties caused to issue a lawyers notice to the complainant demanding Rs.337050/- as loan arrears within 7 days of the receipt of the notice. The issuance of the above notice nothing but mental harassment on the part of the opposite parties.
8 . The complainant is ready and willing to clear the arrears in the loan amount. However due to the adverse financial conditions of the complainant the complainant is unable to pay the huge interest and other charges claimed by the opposite parties. The interest and other charges imposed by the opposite parties are over and above the direction of the RBI and hence it is unfair trade practice also.
9 . On 2nd November 2020, the complainant came to know that the opposite parties are taking hasty steps to recover the loan arrears. This caused considerable pain and mental agony to the complainant.
10 . The denial of the moratorium benefits to the complainant under the pretext of the top up loan and also denial of the top up loan in spite of the loan repayment during the moratorium caused considerable pain and mental agony to the complainant and the complainant is entitled to get compensation for the same. The complainant claim Rs.5 Lakhs as compensation for the same.
11 . The cause of action for this complaint arouse on 07/06/2018 on that day the loan was sanctioned again 09/10/2020 the first opposite party sent a notice to the complainant demanding the entire loan amount outstanding aggregating an amount of 1137840 within 7 days of the receipt of the notice, and on 20/10/2020 on that day the opposite parties caused to issue a lawyers notice to the complainant in Munnar Kara in Idukki District is within jurisdiction of this Hon'ble Commission.
(Cont......4)
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Hence complainant prayed for the following reliefs.
1 . The opposite parties may be asked to pay Rs.5, 00, 000/- (Rupees five Lakhs only) as compensation for the pain and mental agony to the complainant.
2 . The opposite parties may be asked to pay Rs.5,000/- as cost of the complaint.
3 . Such other reliefs that deemed just and equitable also may be granted.
Complainant filed copy of following five documents along with the complaint.
a . Repayment schedule from 04/07/2018 to 04/10/2021.
b . Receipt No.6175820 2111303 dated 29/07/2020 issued by first opposite party to complainant evidencing payment of Rs.13,8900/-.
c . E-mail dated 17/09/2020 issued by opposite parties bank to complainant and e-mail dated 24/10/2020 sent by complainant to opposite parties.
d . Lawyer notice dated 09/10/2020 issued on behalf of opposite parties bank calling upon him to pay Rs.11,37,840.71 failing which legal action will be taken.
e . Lawyer notice dated 20/10/2020 on behalf of Bank calling upon the complainant to pay dues Rs.3,37,050-71 within 7 days failing which legal action will be taken against him.
Notice was issued to opposite parties. On 13/04/2021 opposite parties represented and prayed for objection and written version. Thereafter no representation for opposite parties and no objection on IA and written version is filed. On 09/06/2022, complainant and opposite parties were absent. No representation also. Written version is not filed. Case was posted for complainant's evidence to 15/07/2022. On that day also complainant and opposite parties were absent and no representation for both. Hence above documents
(Cont......5)
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produced by complainant were marked as Ext.P1 to Ext.P5 respectively and evidence closed. Case was taken for orders.
We have examined the averments made in the complaint and perused documents produced. As the complainant and opposite parties are absent and no written version is filed by opposite parties, complaint is decided on merits.
On going through the contentions of the complainant, following points arise for consideration.
1 . Whether the complainant is a 'consumer as defined in CP Act, 2019 and whether the complaint is maintainable ?
2 . Reliefs and costs.
Point No.1
On a perusal of complaint, it is seen that complainant himself admitted that he took business loan from the opposite parties in 2018. He also admitted that he is running a tourist centre at Munnar in the name and style Inspire Holidays. He stated that it is running as a self employment.
No details regarding the income from the said business or amount spent for the same is produced. Moreover, he has not stated anything about his other earnings if any. Mere statement that business is done as a self employment would not suffice to establish that he is a 'consumer'.
As per S.2(7)(ii), a person who avails any service for any commercial purpose is outside the purview of 'consumer'. As per explanation (a) to this sub section “commercial purpose' doesn’t include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of sef employment. From this it is clear that “ a person who hires or avails of any service” even if for earning his livelihood by means of self employment is not treated as a “consumer”.
(Cont......6)
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In the light of legal and factual aspects pointed out above, we are of the concrete view that complainant is not a 'consumer' as defined in S. 2(7) of Consumer Protection Act, 2019. Hence this complaint is not maintainable before this Commission. Point No.1 is answered as above.
Point No.2
As the complaint is not sustainable, complainant is not entitled to get any relief as prayed for. Point No.2 is answered accordingly.
In the result, complaint is dismissed as devoid of merits without any order as to costs. IA filed stands disposed of.
Pronounced by this Commission on this the 11th day of August 2022.
Sd/-
SRI.AMPADY K.S., MEMBER
Sd/-
SRI.C.SURESHKUMAR, PRESIDENT
Sd/-
SMT.ASAMOL P., MEMBER
(Cont......7)
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APPENDIX
Depositions :
On the side of the Complainant :
Nil
On the side of the Opposite Party :
Nil
Exhibits :
On the side of the Complainant :
Ext.P1 - Repayment schedule from 04/07/2018 to 04/10/2021
Ext.P2 - Receipt No.6175820 2111303 dated 29/07/2020 issued by first opposite
party to complainant evidencing payment of Rs.13,8900/-.
Ext.P3 - E-mail dated 17/09/2020 issued by opposite parties bank to complainant
and e-mail dated 24/10/2020 sent by complainant to opposite parties.
Ext.P4 - Lawyer notice dated 09/10/2020 issued on behalf of opposite parties
bank calling upon him to pay Rs.11,37,840.71
Ext.P5 - Lawyer notice dated 20/10/2020 on behalf of Bank calling upon the
complainant to pay dues Rs.3,37,050.71
On the side of the Opposite Party :
Nil
Forwarded by Order
ASSISTANT REGISTRAR
