BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 12 of 2011
Date of Institution : 17.1.2011
Date of Decision : 26.11.2015
M/s Kalra Traders, 18/2, Janta Bhawan Road (opposite Yuvak Sahitya Sadan), Sirsa, tehsil and District Sirsa (Hry.) through its proprietor Sh.Vishal Kalra s/o Sh.Sant Lal Kalra.
….Complainant.
Versus.
- HDFC Bank Ltd., through its Branch Manager, Janta Bhawan Road, Sirsa-125055, tehsil and distt.Sirsa (Hry.).
2. HDFC Bank Ltd. through its Authorised Signatory, HDFC Bank House,
Senapati Bapat Marg, Lower Parel (West), Mumbai-400013.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT.GURPREET KAUR GILL ………PRESIDING MEMBER.
SHRI RAJIV MEHTA ……MEMBER.
Present: Sh.Anil Bansal, Advocate for the complainant.
Sh.R.K.Chaudhary, Advocate for the opposite parties.
ORDER
Brief facts of the complaint are that the proprietor of complainant concern Sh.Vishal Kalra took Auto loan of Rs.3,00,000/- for purchase of a Maruti-Swift Car for his personal family use in the name of his proprietorship concern from the Bank of Punjab Ltd., Sirsa (later on known as Centurion Bank of Punjab Ltd.) on 5.7.2005 vide A/c No7 CLA 1251450, which was to be repaid in 60 equal monthly instalments of Rs. 6042/- each. The first instalment was due from 1.8.2005, but the complainant paid first instalment in advance on 5.7.2005 and regarding remaining 59 instalments, the complainant issued 59 post dated cheques bearing Nos. 940621 to 940679 dt. 1.8.2005 to 1.6.2010 respectively of Canara Bank, Sirsa bearing account no.10211. Out of above cheques, 17 cheques bearing Nos. 940621 to 940637 were duly cleared. The complainant got closed his said account no.10211 of Canara Bank, Sirsa in the second week of December,2006 and also informed the concerned bank-CBOP Ltd. vide its letter dt. 18.12.2006 and he also requested not to utilize remaining cheques as he got opened a CC A/C No.14138370000217 with OD limit of Rs.20,00,000/- on 11.12.2006 with CBOP. The complainant started to make payment of remaining instalments of car loan in cash w.e.f. 1.1.2007 on the asking of CBOP. At the time of opening the said CC account, the authorities of Bank of Punjab Ltd/CBOP very well known regarding the closure of bank account of the complainant with Canara Bank, Sirsa. After merger of CBOP Ltd. in HDFC Bank Ltd., Ops/HDFC Bank Ltd. owned all assets and liabilities of CBOP Ltd. for all intents and purposes and on the request of Op no.1, the complainant issued post dated cheques of OP no.1 from its CC A/C No.14138370000217 vide cheques no.42527 to 42534 dt.1.10.2009 to 1.5.2010 of Rs.6042/- each and Cheque No.42535 dt. 1.7.2010 of Rs.5792/- for repayment of remaining instalments. But the Centurion Bank of Punjab Ltd., Sirsa (Now HDFC Bank- OP no.1) deliberately presented cheques for realisation of loan amount, when they were having the knowledge regarding closure of Canara Bank account and got different cheques dishonoured. The bank debited huge amount in loan account on various dates i.e. total amount Rs.18,983/- and same have been shown in statement of loan account, which are wrong, illegal, arbitrary and without fault of complainant.
2. Under constrained circumstances and after assurance by OP no.1 regarding wiping off said illegal charges (Cheque Bouncing and Overdue Charges), the complainant also issued cheque no.42582 dt. 14.11.2009 of Rs.24,168/- of said CC account, as remaining payment towards instalments. To adjust the said illegal amount, OP no.1 of its own, transferred the above amount as well as instalments from complainant’s CC Account to Car loan account no.91434544- Old nO.7 CLA 1251450. Moreover, apart from above, OP no.1 also debited CC account for making adjustment in Auto loan account of its own on 29.12.2007 and on 6.5.2010. Thereafter, the complainant got stopped payment of cheque no.42534 dt. 1.5.2010 and cheque no.42535 dt. 1.6.2010 of Rs.6042/- and Rs.5792/- respectively vide application dt. 27.4.2010. The complainant also requested OP no.1 to reverse the entry of its CC account by crediting the amount of Rs.48245/- and which were wrongly debited in CC A/C without permission of complainant, but no action has been taken by Op no.1. Hence, this complaint for refund of excess, wrong, illegal and arbitrary amount alongwith interest, besides damages for harassment, mental tension, humiliation etc. and litigation expenses.
3. Opposite party i.e. respondent put in appearance and filed its reply. It is admitted in the reply that the complainant availed loan in the name of firm. It is pleaded that the car was purchased for commercial purposes i.e. for the firm. As the complainant committed default in the payment of instalment amount, therefore, he was become liable to pay overdue charges. Various cheques of complainant were dishonoured and thus, he was liable to pay cheque bouncing charges as per the terms and conditions of the loan agreement. No intimation regarding the closure of account with Canara Bank, Main Branch, Sirsa was ever given. The complainant never requested the opposite party for not using the cheque issued by the complainant to be drawn at Canara Bank. Moreover, as per the terms and conditions of the loan agreement the bank has every right to set off his claims from the other account of the borrower with the Bank. The complainant has availed a CC limit from the bank and as per the clause of the terms and conditions of the loan agreement in the event of default the amount of the loan account of Car was rightly charged from the other account of the complainant. The opposite party has not committed any act which amounts to illegal or deficient in service.
4. Both the parties have led their evidence in the form of affidavits and documents. The complainant has tendered in evidence Ex.CW1/A-his affidavit; Ex.C1-statement of account; Ex.C2-closure letter; Ex.C3-termination of loan agreement; Ex.C4-Form 35; Ex.C5-information regarding closure of Canara Bank account; Ex.C6-request letter for stopping payment of remaining cheques; Ex.C7-its reply regarding stoppage of cheque no.42534 to 35; Ex.C8-application for crediting the amount of Rs.11221; Ex.C9-request for supply of two certified copies of account no.1413837; Ex.C10-express legal notice; Ex.C11 and Ex.C12-postal receipts; Ex.C13 and Ex.C14-acknowledgements whereas the respondents have tendered Ex.R1-affidavit of Mohinder Sharma, Power of attorney holder of HDFC Bank; Ex.R2-application form; Ex.R3-agreement; Ex.R4-Master circular; Ex.R5 and Ex.R6-statement of accounts.
5. We have gone through the record of the case carefully and have heard learned counsel for both the parties.
6. It is admitted fact that complainant taken a car loan of Rs.3,00,000/- on 5.7.2005 vide ExR2. It is agreed that loan was to be paid in sixty instalments of Rs.6042/- each. It is apparent from the record loan was advanced in favour of firm M/s Kalra Traders. First of all, we have to decide maintainability of this complaint in the consumer Forum. Various preliminary objections are also taken i.e. against the maintainability of the complaint in the present form; that the complainant is not ‘consumer’ within its meaning in Consumer Protection Act and that matter in dispute is in between the borrower and the bank, regarding financial services and so, the relationship between the parties is that of debtor and creditor, for which this Forum has no jurisdiction.
7. Both the parties to the complaint, have placed on record various documents, including their supporting affidavits, copy of legal notice of the complainant, its acknowledgement, statement of account, copy of agreement etc.
8. At the very outset, it is note worthy that the complainant is not the ‘consumer’ within its meaning in Consumer Protection Act, as admittedly the complainant is a proprietorship firm. Firm is a commission agent and taken the loan from the Ops in favour of firm. Besides, this firm has cash credit account with the Ops in order to run its business. Therefore, the complainant is a commercial identity and taken the loan in favour of firm and Cash Credit Limit i.e. services of the opposite parties, was also taken for commercial activity. As per Clause 2(d)(ii) of Consumer Protection Act, 1986, “if services of the opposite parties are availed for any commercial purpose, then that person is not a consumer”. Since the complainant is not a ‘consumer’, so, this complaint is not entertainable by this Forum.
9. However, there is no dispute with the proposition of law that Cash Credit Limit facility or any other facility like loan in favour of the firm, connected with banking, in rendering “services” falls within its meaning of service in Section 2(o) of Consumer Protection Act. In the case in hand, the complainant is admittedly business concern. The car regarding which the loan was taken was being used for running the business of Firm. It is apparent from the statement that all the instalments paid from the firm account not from the individual account. The entire Credit was also obtained for running its business. “Services” of the opposite parties were taken by the complainant for commercial activity. Therefore, the complainant is not the ‘consumer’ within its meaning in Consumer Protection Act. Therefore, this complaint is not entertainable by this Forum.
10. Now, we have to decide that whether Ops had charged cheque dishonored charges and over due charges Rs.18983/- in a legal manner or not? Complainant has submitted the advance repayment cheques to Ops, complainant knows the stipulated dates of honours of cheque. It was the duty of the complainant to leave the balance in his account when the cheques were to be encashed. Moreover, complainant closed his account from which he issued the cheque for repayment of loan account and now he cannot shift his liability on the shoulder of Ops by taking false pretext like as Ex.C5, which have no evidentiary value without proving it as per the provisions of Evidence Act. Whenever the cheques are dishonoured, the bank is entitled to recover the dishonored and over due charges from its customer. The complainant has alleged that he was already giving the advanced cheques but, regarding the dishonor of cheques, the Op had not informed him. But, in our view, when the complainant was giving advanced cheques, the Ops are not bound to give him the information regarding dishonor of cheques. Hence, the bank has recovered the said charges in a legal manner and thus, there is no deficiency in service on the part of Ops.
11. Moreover, in fact, the present case is nothing, but is also a case for recovery of already paid amount. Remedy for it, does not lie before this Forum, but lies somewhere else.
12. The complainant has, thus, totally and miserably failed to prove the maintainability of the complaint before this Forum, as well as, deficiency of any service on the part of the opposite parties. Therefore, this complaint is hereby dismissed, but with no order as to costs. Copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 26.11.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
Kalra Traders. Vs. HDFC Bank
Present: Sh.Anil Bansal, Advocate for the complainant.
Sh.R.K.Chaudhary, Advocate for the opposite parties.
Arguments heard. For order to come up on 26.11.15.
Presiding Member,
Member D.C.D.R.F,Sirsa.
19.11.2015
Present: Sh.Anil Bansal, Advocate for the complainant.
Sh.R.K.Chaudhary, Advocate for the opposite parties.
Order announced. Vide separate order of even date, complaint has been dismissed with no order as to costs. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated:26.11.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
