Punjab

Ludhiana

CC/16/138

Pardeep kumar - Complainant(s)

Versus

HDB Financial Services Ltd - Opp.Party(s)

Inderpreet Singh Adv.

11 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 138 of 18.02.2016

Date of Decision            :   11.05.2016

 

Pardeep Kumar Aggarwal son of Sh.Parshotam Dass, Prop. M/s Rain Communication and Gift Centre, 10, Guru Ram Dass Market, Opp.Kwality Dharam Kanda, Janta Nagar, Gill Road, Ludhiana.

….. Complainant

                                                         Versus

1.HDB Financial Services Ltd., 4^th Floor, Kunal Tower, Mall Road, Ludhiana, through its District Head.

2.HDB Financial Services Ltd., 2^nd Floor, Gokul Towers, Panjagutta Main Road, Panjagutta, Hyderabad-500082, through its Managing Director.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                      :        Sh.Inderpreet Singh Tara, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant as proprietor of M/s Rain Communication and Gift Centre has filed complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) against Ops by claiming that       claim of foreclosure charges on loan facility availed by him vide loan account No.824321 is against Circular dated 14.7.2014 bearing No.DNBPS (PD.CC.No.399/03.10.42/2014-15 issued by the Reserve Bank of India. It is claimed that pre-payment penalty and foreclosure charges of amount of Rs.2,21,657.02P are claimed on the principal contracted amount of Rs.48,39,672.83P. Copy of agreement has not been produced to show the purpose, for which, the hefty loan amount was contracted. That loan has already been repaid and account closed vide letter dated 11.12.2015 is a fact borne from the closure letter produced on record. Now claim of the complainant is for issue of directions to OPs to refund the charged amount of Rs.2,21,657,02P as pre-payment charges along with interest @18% p.a. However, nowhere in the complaint, it is mentioned that loan was contracted by the complainant for self employment or for earning livelihood. Purpose for which loan contracted has not been disclosed at all in the complaint or through written submissions or by producing any document. Proprietorship concern always carries on business. Hefty loan amount of Rs.48,39,672.83P alleged to be contracted, but the purpose of contraction of that loan not disclosed and as such, certainly there is suppression of material facts in that respect. Such assumption liable to be drawn from the circumstances referred above. Decision given in the earlier complaint not binding because facts of each and every case differ. If the financed companies are duping our customers by charging foreclosure charges, then consumer complaint maintainable only, in case, complainant is a consumer as per the provisions of Section 2(1)(d) of the Consumer Protection Act, 1986. In case, customer contracting loan does not fall under the definition of consumer, then he has other remedy available with him for seeking refund by filing civil suit for declaration or like that.

2.                In case, a person booked two flats, then the booking cannot be said to be for residential purpose. Rather, such booking will be for the purpose of investment of amount for commercial purpose, due to which, the concerned person will not be a consumer is the law laid down in case of Inderjeet Dutta vs. Samridhi Developers and others-II(2015)CPJ-342(N.C.). So, law laid by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi itself provides that inference qua investment for commercial purpose or otherwise can be drawn from the facts and circumstances of the case. So, written submissions has no force that this Forum at the stage of admission cannot draw reasonable inferences even. Rather, when the agreement in question not produced on record and the purpose of contracting loan not disclosed, then inference is obvious that virtually the loan may have been contracted not for individual need, but for carrying on commercial business, particularly when the contracted loan amount is hefty as referred above.

3.                As per law laid down in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), in case, software purchased by the private limited company is meant for the use of the Managing Director for running business, then in absence of allegations that same used in business for earning livelihood, complainant concerned will not be a consumer. Same is the position in the case before us because here, no plea taken in the complaint or in the written submission that loan contracted for self employment or for earning           livelihood. Ratio of this case is fully applicable to the facts of the present case.

4.                Suppression of material facts always to be taken as a ground for dismissal of complaint. In holding this view, we are fortified by the case law laid down in cases titled as Neetu Namdhari vs. LIC of India and others-I(2014)CPJ-442(N.C.); Life Insurance Corporation of India vs. Santosh Devi-IV(2014)CPJ-139(N.C.) and Sushil Mittal vs. AEGON Religare Life Insurance Company Limited and others-III(2015)CPJ-4B(CN)(U.T. State Consumer Disputes Redressal Commission, Chandigarh). In all these cases, claim of insurance repudiated due to suppression of material facts and same is the position in the case before us because here purpose of contracting the hefty loan amount not disclosed and nor relevant documentary evidence pointing to the purpose of contraction of loan has been produced.

5.                In case, the loan contracted or installation of lift or like that is for commercial purpose, then Consumer Fora has no jurisdiction to entertain and try the complaint. Dismissal of complaint in such circumstances is warranted by giving opportunity to the complainant to seek redressal of grievances from the Civil Courts or from the appropriate authorities. In holding this view, we are fortified by the case law laid in cases titled as Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.). In the reported case, lift was got installed for commercial purposes and that is why the complaint was dismissed by holding that Consumer Fora has no jurisdiction. Likewise in case of Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.), it has been held that when the car was not purchased exclusively for the purpose of earning livelihood by means of self employment, but for the Director of Company, then same purchased for commercial purposes, due to which, Consumer Fora has no jurisdiction to entertain the consumer complaint.

6.                Vide order dated 6.5.2016, an adjournment was granted at the request of proxy counsel for complainant, so as to enable the complainant to mention the purpose of contraction of loan. That purpose has not been disclosed despite grant of that chance and as such, virtually the complainant without disclosing the purpose of contracting loan wants to avail relief, despite the fact that Consumer Fora has jurisdiction to entertain the complaints of Consumers defined under Section 2(1)(d) of the Consumer Protection Act, 1986 and not otherwise. Equity favours the case of that party alone, who approaches the Forums and Courts with clean hands because fundamental legal proposition is that he who seeks equity must do equity.

7.                Even in case of Jagrook Nagrik and others vs. Cargo Motors Pvt. Ltd. and others-III(2015)CPJ-1(N.C.), it has been held that when truck chassis purchased by the complainant for extending the existing transport business, then the chassis cannot be said to have been purchased exclusively for the purpose of earning livelihood by way of self employment, due to which, the complainant will not be a consumer. So, onus is on the complainant to disclose the purpose of contraction of loan. If such onus not discharged through allegations/averments of the complaint, then certainly inference of suppression of facts liable to be drawn and same is the position in the case before us. So, complaint being filed by suppressing material facts, merits dismissal at the admission stage itself. Complainant not allowed to proceed with complaint. Copy of order be supplied to the complainant free of costs as per rules. 

8.                File be indexed and consigned to record room.

 

                   (Babita)                                         (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:11.05.2016

Gurpreet Sharma.