BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.
Consumer Complaint No. 86 of 2017
Date of Institution: 18.09.2017
Date of Decision: 26.02.2018
Harjinder Singh, aged 40 years, shop keeper son of Harnek Singh, resident of Osang Patti Gali Kashmiria Wali, House No.563, Purana Moga.
Complainant
Versus
- HDB Financial Services Private Limited, Branch Office, Ferozepur Road, Moga through its Branch Manager Principal Officer.
- HDB Financial Services Private Limited, 3rd and 4th Floor, Hemalatha mansion 7-1-397/111 and 112, Sr.Nagar, Hyderabad-500038.
- Som Nath
- Sunny Singla, ages care of HDB Financial Services Private Limited, Branch Office, Ferozepur Road, Moga.
Opposite Parties
Complaint under section 12 & 14 of the Consumer Protection Act, 1986.
Present: For the Complainant: None
For opposite parties No.1 and 2: Sh.Ranvik Mehta, Advocate.
For Opposite Parties No.3 and 4: Sh.Vishal Jain, Advocate.
Coram
Smt.Vinod Bala, Presiding Member
Smt.Bhupinder Kaur, Member.
Order dictated by:
Smt.Bhupinder Kaur, Member
1. The complainant has brought the instant complaint under section 12 & 14 of the Consumer Protection Act, 1986 on the allegations that he has account with Bank of Baroda having account No.05700100007149 and he had applied for grant of personal loan of Rs.1,19,421/- with Opposite Party No.1 and said loan was duly sanctioned. It was further averred that at the time of sanction of the loan, the opposite party has obtained 7 cheques as securities. The complainant has requested opposite party No.1 to deduct the amount of loan through his bank account maintained by him with Bank of Baroda. The opposite party has withdrawn the amount of cheque on 12.7.2017 as the said cheque was obtained as self cheque as security purpose. There was sufficient balance of Rs.5849.50 paisa as on 10.7.2017. Due to the withdrawal of the said amount by opposite party, the cheque has been dishonoured and hence the complainant is a consumer of the opposite party. Opposite Parties No.3 and 4 are working as agents of Opposite Party No.1 and they have charged commission of Rs.6500/- for the said loan case and the complainant has came to know from his bank about dishonouring of the cheque. So, due to dishonoring of the cheque, the concerned bank has charged penalty from the complainant. Said amount has been withdrawn by all the respondents and a fraud has been committed. The complainant approached the opposite party to pay amount in question, but with no effect. Due to the aforesaid illegal and unwarranted acts of the opposite parties, the complainant has suffered huge mental tension and agony, through, such loss can not be compensated in terms of money, but still the complainant claims a sum of Rs.50,000/- as damages for causing him mental tension and harassment and agony. The opposite parties were asked many a times to pay the remaining amount, but they have refused to do so. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties be directed to refund Rs.2500/- and damages of Rs.1598/- on account of damages charged by Bank of Baroda due to dishonouring of the cheques and also to pay Rs.50,000/- as compensation for causing him mental tension, harassment and agony to the complainant or any other relief to which this Forum deems fit and proper in the circumstances of the case.
Hence, this complaint.
2. Upon notice, opposite parties No.1 ,2 appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the present complaint is false, frivolous and vexatious to the knowledge of the complainant and is liable to be dismissed on this ground, by imposing heavy punitive costs, rather the complaint filed is nothing, but a flagrant and blatant abuse of the process of law and has been filed with an ulterior motive to harassment, humiliate the answering opposite parties, so that they can be pressurised to succumb to the illegal and illegitimate demand of the complainant. The opposite party is non banking financial public limited company registered under the Companies Act. It can not act like a private individual. The complaint is not maintainable, and is liable to be dismissed preliminary on the score that the complainant is not a consumer within the meaning, definition and scope of consumer as defined in the Act as the complainant has taken personal loan from the answering Opposite Parties worth Rs.1,25,000/- which he agrees to pay in 36 monthly instalments alongwith financial charges. Further, from the averments mentioned in the complaint, it can very safely gathered that the present complaint against the answering Opposite Parties has been wrongly filed as the main grievance of the complainant is with Bank of Baroda and the answering opposite parties have nothing to do with the bouncing of cheques, if any. Further, the answering party is a responsible non banking financial institution providing services as per the guidelines and norms settled by RBI, at no point of dealing with the complainant any unfair trade practices or deficiency in services were given to the complainant and hence the complainant is not entitled to any claim as prayed. The complaint is liable to be dismissed as the relationship between the complainant and opposite party is that of borrower and debtor/ lender as is clear from the loan agreement and loan account statement itself. On merits, the answering opposite parties have denied that the complainant has applied for a personal loan of Rs.1,19,421/- with opposite party No.1, but true facts are that the complainant has applied for loan of Rs.1,25,000/- which was duly sanctioned. It is denied that at the time of sanction of loan, the answering opposite parties have obtained 7 cheques as security. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. Opposite parties No.3 and 4 appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the present complaint has been filed by the complainant only to injure the reputation of answering opposite parties. Even otherwise, the present complaint is false, vexatious and the answering opposite is entitled to get the special costs. The present complaint is liable to be dismissed on the ground that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Act. No deficiency in service has been alleged in the complaint on the part of the answering opposite parties. Answering opposite parties were only working as the employee of opposite parties No.1 and 2 and being as employee they had deal with the customers of bank who had applied or interested for obtaining the personal loan from the bank. In this case, the answering opposite parties only disclosed the complainant about the terms and conditions of the personal loan as the complainant had obtained a total loan of Rs.1,25,000/- from opposite parties No. 1 and 2 and in this regard, a total amount of Rs.1,19,421/- was credited in the account of the complainant and even this fact is also mentioned in the complaint of the complainant and is an admitted fact. Moreover, at the time of taking loan the opposite parties No.1 and 2 obtained security cheques as per their rules before sanctioning loan and the answering opposite parties have no link with the same. Moreover, the allegations regarding the withdrawn of amount and due to that reason the cheque of complainant was bounced is not related to the answering opposite parties as the matter is related to the opposite parties No.1 and 2 only, so the present complaint is liable to be dismissed against the answering respondents. The present complaint is liable to be dismissed, as the complainant make only a concocted story to implicate the answering opposite parties. Moreover, the present complaint has been filed only to save his skin for paying the liability of loan or instalments from the side of complainant. On merits, the opposite parties No.3 and 4 took up the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
4. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C6 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.3 and 4 tendered into evidence the affidavit of Sh.Som Nath and Sh.Sunny Singla Ex.OP3,4/1 and closed the evidence on behalf of Opposite Parties No.3 and 4.
6. Ld.counsel for the opposite parties have mainly contended the averments as mentioned in its written version and argued that the written version filed by the opposite parties be read as part and parcel of the written arguments. Perusal of the file shows that after tendering his documents on 4.1.2018, none appeared on behalf of complainant, though the case was adjourned to 9.1.2018, then for 10.01.2018, then for 12.01.2018, then for 19.01.2018, then for 2.2.2018, then for 16.2.2018 and then for today i.e. 26.2.2018 meaning thereby none appeared on behalf of complainant from the last seven dates. On the other hand, ld.counsels for opposite parties are appearing on each and every date of hearing. Hence, we have perused the documents on file and heard the ld.counsel for the opposite parties.
7. First of all, perusal of the documents on file shows that the complainant has alleged that that he has account with Bank of Baroda and to prove his case, the complainant has placed on record the copy of pass book of Bank of Baroda Ex.C2, copy of statement of account of Bank of Baroda Ex.C3, but the complainant has not arrayed the said Bank of Baroda, as party with whom he has first cause of action to file the instant complaint. Furthermore, from the last seven dates, the complainant has not come present for the reasons best known to him, and it appears that the complainant is not interested in prosecuting his case.
8. Moreover, this Forum, in the absence of the complainant from the last seven dates, could not know why the complainant has not arrayed the Bank of Baroda, which was the necessary party. Furthermore, in his complaint in para No.13, as well as in his duly sworn affidavit Ex.C1 in para No.13, the complainant has himself vehemently submitted that that a fraud has been committed by all the respondents with him. As asserted by the complainant himself that a fraud has been committed by the Opposite Parties with him. It clearly becomes a case replete with the elements of fraud, cheating and such disputes are certainly not adjudicable before the Consumer Disputes Redressal Agencies because the proceedings before the Consumer fora are summary in nature . In the case in hand extremely complicated questions of fact and law are involved, as has been discussed in an elaborate manner in the preceding paragraphs , as such the parties are required to take their dispute to the Civil Court of competent jurisdiction where the parties can lead elaborate oral and documentary evidence and where they will get an opportunity to examine their witnesses and cross examine the witnesses of the other party in order to elicit the truth. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, whereine Hon'ble Supreme Court has held that :-
“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”
Their lordships have further held that :-
“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”
9. The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-
“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”
9. In view of the aforesaid facts and circumstances of the case, we are of the view that there is no merit in the complaint and the same is hereby dismissed. But keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 26.02.2018. (Bhupinder Kaur) (Vinod Bala)
Member Presiding Member
