West Bengal

Siliguri

CC/17/40

PAWAN KUMAR GUPTA - Complainant(s)

Versus

HDB FINANCIAL SERVICE - Opp.Party(s)

RAJESH KUMAR SHARMA

26 Jun 2019

ORDER

   FINAL ORDER/JUDGEMENT

 

Sri Subhabrata Chaudhuri, Ld. President.                         Date: 26.06.2019

 

The case of the complainant, in brief, is that he is running a firm under the name and style “J.P. Printers” dealing in printing and general order supply.  The complainant had applied for financial assistance through HDB Financial Service (OP No.1) in the months of July 2016 and on processing the matter the Branch Manager of such OP No.1 asked the complainant to submit his identity proof, residential proof and other documents to substantiate his income to ascertain ability of complainant to repay the amount.  Accordingly complainant submitted relevant documents and at that time branch manager of OP No.1 introduced complainant with one Sagar Ghosh under

Contd….P/2

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P.S.-Phansidewa as an employee of HDB Financial Service thereafter, on 20.07.2016 the branch manager of OP No.1 along with said Sagar Ghosh came to office/resident of complainant to verify the residential and office details provided by complainant and told the complainant that they may come again if required. Subsequently, on 21.07.2016 branch manager of OP No.1 called complainant and told that loan has almost been approved and asked the complainant to hand over blank cheques duly signed by complainant (total 9 cheque from cheque no. 215-223) to Sagar Ghosh for pre approval of loan (security purpose).  Lastly on 28.07.2016 after being satisfied a loan to the tune of Rs. 2,02,101/- only was approved and the same was credited into a/c number 05282000004922 at HDFC Bank Ltd. Naya Branch wit EMI of Rs. 8,239/- being loan number 1668443.  It is further contended in the petition of complaint that on scrutiny on bank account statement on 04.10.2016 the complainant found that the cheque being no. 223 and 223 entrusted during the loan process has been misappropriated by branch manager of OP No.1 and Sagar Ghosh jointly by withdrawing Rs.20,000/- and Rs. 42,000/-. On notice of the same complainant rushed to the office of the OP No.1 and informed the matter to the then branch manager while branch manager assured complainant that if at all any mistake is there he would rectify the same.  On such assurance complainant did not lodge any complaint or grievance anywhere and thereafter, many times complainant had been to that office of OP No.1 but branch manager in the same way assured complainant by saying that the matter is under process would be resolved through head office of their concern(OP No.2).  Ultimately complainant after waiting a considerable period on 21.10.2016 sent a legal notice through his lawyer and brought the matter into the knowledge of head office of HDB Financial Service at Mumbai, OP No.2 which office received the notice but did not refund the amount. In fine, complainant lodged a written complaint with officer in charge of Panitanki T.O.P. under P.S.- Siliguri  against branch manager of OP No.1 and also against Sagar Ghosh, OP No.3 which was registered as Siliguri P.S. Case number 194/2017 dtd. 16.03.2017 under section 406, 409 of IPC.  Accordingly, the complainant compelled to file this case under section 11 and 12 of the C.P. Act. 1986 with a prayer for direction upon the OP Nos. 1 & 2 to refund the amount of Rs. 62,000/- with interest @ 18% thereon with a further direction upon the OPs to pay to the complainant compensation to the tune of Rs. 15,000/- for mental agony and harassment and for another sum of Rs. 15000/- on account of cost of the litigation.

It appears from the case record that OP Nos. 1 & 2 entered in this case and have been contesting by filing Vakalatnama but by virtue of order no. 5 which of dtd. 18.08.2017 it is seen that the case has been running ex-parte against OP No.3 who in spite of receiving summons did not appear till 45 days of statutory period

Contd….P/3

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for submission of written version.  OP Nos. 1 & 2 in their written version have denied almost all the complaint allegations barring a few.  It is stated by this OPs that complainant suppressed the material facts for his illegal gain and as such the complaint is liable to be dismissed. It is categorically mentioned in the written version that complainant does not come within the definition of ‘consumer’ so this complaint is liable to be dismissed on that score also. And in this context it is further submitted in the w/v that complainant did not apply for loan/financial assistance in his name but he applied to avail financial assistance for the firm ‘J.P. Enterprise’ for his commercial purpose.  In the written version it is stated that loan was approved and sanctioned for an amount of Rs. 2,10,000/- but not for an amount of Rs. 2,02,101/- as stated in the petition of complaint.  It is the case of the written version that cheque being Nos. 222 & 223 were not ever handed over/deposited to the OP No.1 but complainant had deposited seven(7) cheques being Nos. 215, 216, 217, 218, 219, 220 & 221 for disbursement of said loan.  So it is reiterated in the written version while those two cheques being Nos. 222 & 223 were not deposited to the OP No.1 so the question of misappropriation of the said two cheques’ amount of Rs. 20,000/- and Rs. 42,000/- respectively by the OP No.1 does not arise at all.  As regards allegation against Sagar Ghosh it is submitted by the OPs in the w/v that OP No.1 did not ever engaged said Sagar Ghosh, OP No.3 in this case who resigned from his job on 26.08.2016 of HDB Financial Service.  The complainant has filed affidavit in chief of himself and no other witness is there but the documents are filed by the complainant showing the loan transaction papers.  On the other hand, the OP Nos. 1 & 2 filed evidence of one Kousik Dutta on behalf of them along with an affidavit with some documents which include loan agreement being no. 1668443 entered with the complainant of this case Pawan Kumar Gupta and OP No.1 of this case and also filed the resignation letter copy dtd. 26.08.2016 of OP No.3, Sagar Ghosh along with a schedule appended therewith which show the details of the cheques deposited by the complainant beneath which the signature of complainant is there as proprietor of J.P. Printers dtd. 23.07.2016.  Lastly both the sides submitted their written notes on argument prior to advancing oral argument in this case.  On the basis of above material on record this Forum framed issues as follows for the determination of this case:-

ISSUES

1. Is the complainant rightly a consumer as per section 2(1)(d) read with section 2(1)(o) of the C.P. Act. 1986?
2.  Has there been any deficiency in service upon the complainant from the side of the OPs?
3. Has there been any unfair trade practice adopted by the OPs upon the complainant?

Contd….P/4

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4. Is the case maintainable in its present form and nature as brought under sections 11 & 12 of the C.P. Act. 1986?
5. Is the complainant entitled to get the relief/reliefs as prayed for?

DECISION WITH REASONS.

ISSUE NOS. 1 TO 4.

These four(4) issues are taken up together first for the sake of convenience of discussion and consideration as those are interlinked moreover to avoid repetition.

During argument Ld. advocate for the OP Nos. 1 & 2 reiterated that the cheque Nos. 222 & 223 were never handed over to OP No.1 as ventilated in the petition of complaint by the complainant and therefore the question of misappropriation of money of those two cheques as raised against OP No.1 in connivance with OP No.3 does not arise at all and moreover it is argued that OP No.3 Sagar Ghosh had no stand to be involved in this matter of loan transaction though he was an employee attached with OP No.1-Office but he left the job by putting resignation letter at the relevant time of sanction of loan.  In this context we have gone through the schedule to the loan agreement which shows the details of the cheque Nos. deposited by the complainant with the OPs and therefrom it is clear that the cheque Nos. 222 & 223 are not there which paper showing this non mention of those two cheques has been signed by the complainant.  It is stated further by the Ld. advocate of the contesting OPs that loan was sanctioned amounting Rs. 2,10,000/- but petition of complaint from the very beginning says that loan was amounting Rs. 2,02,101/-.  It is also found from this scheduled appended with the agreement that loan amount was Rs. 2,10,000/- not Rs. 2,02,101/-.  Thus on both these matters about two cheques being No. 222 & 223 and that of the matter of amount of loan we after consideration having look to the documents on record do not find any justification of the complaint averment.  Ld. advocate for the complainant in the written argument referred some judgments which are reported in (2004) 3 CJP 30, United Bank of India Vs Paramananda Prasad and Anr., (2004) 3 CPJ 321, Shreya Enterprises Vs. Biswajit Roy, (2011) 4 CPJ 159, Dipco Limited Vs. Hewlett Packard India Sales (p) Ltd. and Ors. And Sanjay Chopra Vs. Manager, Punjab National Bank & Ors. 1998(1) CPR 358 (SCDRC- Punjab).  During consideration of this case over the above issues we have gone through the same particularly the case as reported in 1998(1) CPR 358 of Hon’ble SCDRC, Punjab for the reason that the complainant in petition of complaint has stated that OP No.1 has misappropriated the cheque amount and defrauded the complainant by misusing those two cheques.  And in

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this context we are attracted with the case as reported in 2018(3) CPR 89 (NC) where Hon’ble National Consumer Disputes Redressal Commission New Dehli has been pleased to hold that Consumer Forum do not have jurisdiction to decide matter of fraud or deceit.  It is astonishing to see that in the petition of complaint by the complainant the allegation of deficiency in service or adoption of unfair trade practice has not been mentioned therein against the OPs but at the written argument of the complainant this allegation of deficiency in service and that of unfair trade practice has been mentioned as in the written version the OPs raised such point of non mention of the same by the complainant.  Accordingly the rulings upon which reliance has been given by the complainant in support of his case are not applicable in favour of the complainant.  Now, the question orienting issue no.1 on the term ‘Consumer’ is required to be discussed and considered with prime importance as because this has been raised by the contesting OPs.  The Ld. advocate for the OPs reiterated during argument that the complainant is not a consumer under purview of the C.P. Act. 1986 and to that effect Ld. advocated for the complainant referred and submitted one judgment  and decision of Hon’ble State Consumer Disputes Rredressal Commission, West Bengal as passed on 11.05.2017 in F.A. No. A/1197/2014.  We have perused that judgment as referred and in this context we have gone through the loan agreement filed in this case on the basis of which loan was sanctioned by the OPs and was accepted by the complainant.  The  name of the customer of that loan as mentioned is J.P. Printers whose proprietor is the complainant and in the schedule of that loan agreement dtd. 23.06.2016 name of the borrower is depicted as J.P. Printers the purpose of the loan is ‘Business’.  Here the definition of Section 2(1)(d) of C.P. Act. 1986  is required to be noticed read with section 2(1)(o) of the same act.  The petitioner/complainant never uttered a single word in the whole petition of complaint that for the purpose of earning his livelihood by means of self employment he is taking the loan as borrower for his firm, J.P. Printers.  The explanation provision of section 2(1)(d) for definition of the term ‘Consumer’ of the C.P. Act. 1986 runs as follows:- “For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment”.  The loan agreement has been signed by the complainant as proprietor of his firm, J.P. Printers.  The mention of this taking of loan for the purpose of business of the complainant is mentioned in the schedule of the loan agreement as signed by the complainant as borrower indicates that the loan was taken for ‘commercial purpose’ and in this context we are tempted to mention here out of academic interest as well as for the proper adjudication of this case the recent decisions of Hon’ble

Contd….P/6

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National Consumer Disputes Redressal Commission, New Delhi as reported in 2018(3) CPR 222 (NC) and 2018 (3) CPR 286 (NC).  In the first reported case our Hon’ble NCDRC, New Delhi has been pleased to hold on section 2 (1)(d) of the C.P. Act. 1986 “Allotment of units has been made in commercial complex and prima facie this only indicates that whole complex will be used for commercial purpose and persons purchasing these units will be utilizing the units for commercial purpose-Complainants are already engaged in business of preparation and sale of school uniforms on a large scales and it seems that they have booked these units for expansion of their business-State Commission rightly decided that units were booked for commercial purpose and complainants are not covered within explanation attached to definition of “Consumer” in Section 2(1)(d) -Appeal dismissed”.  In another case reported in 2018(3) CPR 286(NC) Hon’ble NCDRC, New Delhi has also been pleased to dismiss the appeal on the ground “As per affidavit of complainant, he had purchased machine for his livelihood though machine was purchased for his business purpose”.  Thus under the facts and circumstances of the case, considering all the relevant materials on case record particularly the documents after going through the judgments as referred and mentioned above and the principles as laid down therein, we are of the view, that the complainant has failed to establish the above issues here in this case in his favour and those issues as issue Nos. 1 to 4 are decided against the complainant. This instant case is not maintainable as the complainant is not termed as a consumer as per section 2 (1)(d) of the C.P. Act. 1986. 

Issue No.5.

In view of the above discussion and consideration of the foregoing issues being Nos. 1, 2, 3 & 4 as those have been decided against the complainant holding that the instant case is not maintainable as the complainant is not coming under the purview of ‘consumer’ as per C.P. Act. 1986, as a logical corollary, this issue is also decided against the complainant.  All the issues are thus disposed of.

As a result, instant case fails.  Proper fees paid.

Hence, it is,

O R D E R E D,

that the instant Consumer Case No. 40-S-2017 be and the same is dismissed on contest against OP Nos. 1 & 2 and ex-parte against OP No.3.

Let a copy of this final order/judgment be given to the parties free of cost at once.