DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No.49 of 2015
Date of filing: 13.02.2015 Date of disposal: 10.5.2016
Complainant: Burdwan Scan Centre Pvt. Ltd., 7, R.B. Ghosh Road, Khosbagan, PS. & District: Burdwan – 713 101, Represented by its Director Dr. Subhomoy Nag.
-V E R S U S-
Opposite Party: 1. ICICI Bank Ltd., Burdwan Branch, Burdwan, 398, G.T. Road, Ground Floor, Burdwan, PIN – 713 101, Represented through its Chief Manager.
2. Mrs. Chanda Kochhar, Managing Director and Chief Executive Officer, Office of the Managing Director, ICICI Bank Ltd., ICICI Bank Towers, South Tower, West Wing, 2nd Floor, Bandra Kurla Complex, Mumbai – 400 051.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh.
Appeared for the Opposite Party: Ld. Advocate, Suman Bez.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the Ops as the Ops did not hand over the NOC/no due certificate and the Title Deeds and documents submitted by him as collateral security at the time of obtaining the loan.
The brief fact of the case of the complainant is that being a very reputed diagnostic centre the complainant obtained a loan of Rs. 1,12,50,000=00 bearing loan A/c. no. LDBDN 00001836361 from the OP Bank, Burdwan Branch by giving collateral security of Title Deeds and other documents. The said loan was repayable along with interest by 42 monthly installments, out of which nine monthly installment amounts was of Rs. 3, 99,998=00 and remaining 33 numbers of monthly installment was to the tune of Rs. 2, 95,532=00 payable on or within 7day of each English calendar month on and from 07.02.2004. The complainant paid all the installments and the dues against the said loan account but till date of filing of this complaint the Op-Bank had neither issued NOC/no due certificate nor returned back all the title deeds and documents submitted by him towards collateral security at the time of obtaining the loan. Several correspondences were made by him with the Op through e-mail asking for hand over the NOC/no due certificate along with return back of all the title deeds and documents. Besides such communication the Director of the complainant issued a letter to the OP-2 on 13.12.2013 stating the entire facts. Thereafter discussion was held in between Mr. A. K. Paital, EDP/IT Manager of the complainant and Mr. Soumyajit Chatterjee, Deputy Branch Manager of the OP-1, Burdwan at 10 am on 30.01.2014 wherein verbal confirmation was given by the representative of the Op for making payment of the net amount of Rs. 2, 30,379 =00 towards full and final settlement of the loan account. Accordingly the Director of the complainant based on the verbal assurance of the official of the Op forwarded a Demand Draft no. 019799 dated 03.02.2014 for Rs. 2, 30,379=00 along with his letter requesting the Op to issue NOC and release of the all the documents lying with the Bank submitted by the complainant as collateral security after accepting the payment as full and final settlement towards the loan account. The Op-Bank after accepting the above Demand Draft has already closed the loan account but very unfortunately no communication has been made till this date in the matter of issuance of NOC/no due certificate against the loan account and in respect of release/return of all the original title deeds and documents lying with the OP. The activities of the Ops are clearly indicating deficiency in service, as well as, unfair trade practice on their part. The complainant is always ready and willing to comply their legal obligations to get NOC/no due certificate against the loan account, as well as, to return back all original title deeds and documents lying with the Op, but inspite of repeated request the Ops are not co-operating with the complainant by providing proper information, which indicates unfair trade practice and deficiency in service on the part of the Ops. The Burdwan Scan Centre Pvt. Ltd. is a reputed and renowned diagnostic centre of Burdwan town. Due to deficiency in service and unfair trade practice on the part of the Ops, the Director of the complainant has been suffering from huge loss, mental pain, agony and harassment due to non-availability of original Title Deeds and documents along with NOC/no due certificate against the loan account form the Ops. Finding no other alternative the complainant has been compelled to file this complaint to obtain the above-mentioned documents from the Ops, lying with them submitted by the complainant as collateral security. The complainant is entitled to get the said documents along with compensation to the tune of Rs. 19, 75,000=00 towards mental pain, agony and harassment and litigation cost of
Rs. 24, 000=00.
The petition of complaint has been contested by the Op-1 by filing written version contending that the complainant has availed of various loans for commercial purpose from the OP-Bank, therefore, complainant does not fall within the definition of ‘consumer’ in terms of the Section 2(1) (d) of the C.P. Act, 1986 and hence is not eligible for getting any relief from this ld. Forum. It is submitted by the OP that the complainant has failed to disclose material factual particulars before this ld. Forum for adjudication of this dispute. It has not disclosed the reason to which it availed of said loan from the OP-Bank. The disclosure of the reason as to why the complainant had availed of the loans from this OP is an essential issue for determining whether the present complaint is at all maintainable or not. The true fact of the present complaint is that the complainant availed of eight loans from the OP-Bank for the purpose of purchasing medical equipments to be utilized in the business purpose. The complainant has submitted before this ld. Forum being a reputed and renowned diagnostic centre it is running business at Burdwan. Therefore, it is clear that the facilities availed of by the complainant from this OP being a medical equipment loan is purely a commercial purpose. In view of the agreement dated 20.10.2004 executed by and between the complainant and this Op, one commercial loan being the loan account no. LDBDN00001836361 has been sanctioned by the OP Bank to the complainant. In the agreement the purpose of the said loan has been illustrated, from which it is apparent that the loan was for commercial purpose. It is pertinent to note that in page no. 1 of the said agreement the complainant has agreed to avail credit facility from the OP to purchase machinery equipment. The relevant portion of the agreement which duly illustrates the commercial nature of the said facility is herein reproduced below:
“Whereas:
- The Borrower/s is desirous of buying/is the owner of the Machine/Equipment (s) more particularly described in the Schedule and has approached ICICI Bank for financing the same/extending a loan against the security of the same.
- ICICI Bank has agreed to provide finance to the Borrower/s on the terms and conditions mentioned hereinbelow.
- The Borrower/s has agreed to avail finance from ICICI Bank on the terms and conditions stated hereinbelow.”
It is clearly evident from the above-mentioned clauses of the said agreement that the purpose of availing the said facility was for financing certain medical equipment which was being used for the business purpose of the complainant and hence, therefore it is clearly for commercial in nature. The legislatures of the C.P. Act have duly stated in the definition of ‘consumer’ that any person who avails of a service for any commercial purpose exclusively for the purpose of earning his livelihood by means of self-employment is a consumer under the ambit of the said Act. As the facility availed of by the complainant is for commercial purpose as per the C.P. Act, 1986 accordingly Forum ought to have dismissed the complaint in limini with cost. The complainant has failed to annex any document in support of its contention that it deposited the title deeds at the time of sanctioning of the loan. Strong and vehement objection have been raised in respect of prayer for compensation and according to the Ops the complainant is not at all entitled to any amount as compensation. As the complainant has not approached with clean hands hence prayer has been made by the Ops for dismissal of the complaint.
The complainant has filed evidence of affidavit along with several papers and documents in support of its contention. In pursuance of the petition filed by the Ops several loan statements had been called for from the appropriate authority for proper adjudication of this complaint. Both parties have relied on some Rulings in support of their respective contentions.
At the very outset we are to decide as to whether the complainant can be termed as consumer or not within the definition of ‘consumer’ as enumerated in the CP Act, 1986. As this point has been raided by the OP-1 in the written version, hence this point should be disposed of firstly.
It is stated by the Op-1 in its written version that as the complainant has availed of several loans from the Ops for commercial purpose; hence the complainant does not fall within the Section 2(1) (d) of the CP Act, 1986. It is stated the Paragraph No. 8 of the written version that the complainant obtained eight loans from the Op-Bank for the purpose of medical equipment which was utilized for business and commercial purpose and as the complainant had admitted that it is a reputed and renowned diagnostic centre situated at Burdwan, in this regard it is clearly evident that the facilities availed of by the complainant from the OP is purely commercial in nature. The ld. Counsel for the complainant has raised vehement objection against such plea stating that the complainant is a consumer within the definition of Section 2(1) (d) of the C. P. Act, 1986 because the purpose for which this complaint is initiated cannot be termed as commercial purpose. It is further stated by the complainant that as the loan amount had already been repaid with full final satisfaction of the OP hence, the complainant prayed for issuance of NOC/no due certificate along with title deeds and documents lying under the custody of the ops, which were submitted towards collateral security at the time of sanctioning loan amount in respect of loan account no. LDBDN00001836361. The ld. Counsel for the Ops have relied on some judgment in support of their argument. Firstly, the Ops have placed their reliance on the judgment passed by the Hon’ble NC in the case of Bhardwaj Industries Vs. Premier ltd. & Anr, decided on 04.10.2013 reported in Vol- I (2014) CPJ 146 (NC). Upon careful perusal of the said judgment we are of the view that the said Ruling cannot be implemented in the case in hand because the fact of the said judgment are not same and identical with the instant fact. In the relied case the fact was that the complainant purchased a machine not for the purpose of starting his business exclusively for earning livelihood by means of self-employment, rather it was actually purchased for increasing product line of the complainant with a view to expand the business. As the machine was purchased by the complainant for commercial purpose hence Their Lordships have held that the complainant is not a consumer and dismissed the complaint. In the next Ruling as relied on by the Ops i.e. passed by the Hon’ble NC in the case of Saurabh Gupta & Ors. Vs. Hasti Petrochemical and Shipping Ltd. decided on 13.3.2014 reported in Vol-II (2014) CPJ 137 (NC), upon perusal of the said Ruling in our view that the facts of the said case are totally different from the instant fact because in the relied case complainant purchased machine for commercial purpose and the complainant being a registered company used to deal in business of transportation of domestic and exim cargo, warehousing, fuel stations, container repair yard etc. Therefore, Their Lordships have held that the complainant-company does not fall under the purview of definition of consumer. In another Ruling as relied on by the Ops passed by the Hon’ble NC in the case of Maya Engineering works Vs. ICICI Bank decided on 05.11.2014, reported in Vol-IV (2014) CPJ 777 (NC), upon going through the said judgment in our view that the said Ruling is not applicable in the case in hand because the facts of the said case are different from the instant complaint. In the said case the complainant being a manufacturer and exporter of engineering goods having current account with the Ops. In pursuance of an overseas order, the complainant shipped goods vide invoice dated 12.7.2004 and submitted the export documents to OP for collection, OP failed to collect money and further failed to serve notice of dishonour. Alleging deficiency on the part of the Op, complaint was filed by the complainant.
During hearing the ld. Counsel for the complainant has relied on the judgment passed by the Hon’ble NC in the case of M/s. Harsholia Motors vs. M/s. National Insurance Company decided on 03.12.2004. On careful perusal of the said judgment we have noticed that Their Lordships have held that ‘therefore the two fold classification is commercial purpose and non-commercial purpose. If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of C.P. Act, 1986. Such illustration could be that the manufacturer who is producing one product, (a) for such production he may be required to purchase articles, which may be raw material , then purchase of such articles would be for commercial purpose. (b) As against this, the same manufacturer if he purchases a refrigerator, a television or an air conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the Consumer Forum under the Act………………………………………………………………………………………………………………………
Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ‘for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.
In our view the Ruling as relied on by the ld. Counsel for the complainant is applicable in the case in hand because in the instant case the complainant has prayed for returned back the title deeds and documents submitted by it as collateral security during obtaining loan along with NOC/no due certificate from the OP., hence, neither the NOC /no due certificate nor the title deeds and other documents can generate profit. If the complainant approached before this ld. Forum alleging deficiency in service on behalf of the Ops in respect of sanctioning the loan, obtained for commercial purpose, then only complainant would be oust from the definition of consumer. But as there is no iota of evidence on behalf of the Ops that the documents as sought for by the complainant may generate profit or the service as hired by the complainant related with an activity directly to generate profit, hence in our view the Ops have failed to substantiate their plea that the complainant is not a consumer. Upon considering the above-mentioned point as raised by the Ops, we are of the opinion that the complainant is a consumer within the definition of consumer as enumerated in the Act, 1986.
Now we are to adjudicate as to whether the complainant is entitled to return back the documents as sought for along with NOC/no due certificate from the Ops or not.
In the petition of complaint it is stated by the complainant that it obtained a loan for a sum of Rs. 1, 12, 50,000=00 from the Op Bank by giving collateral security of title deeds and other documents. The loan account no. is LDBDN 00001836361. The said loan was repayable along with interest by 42 monthly installments, out of which nine numbers of monthly installment amount was of Rs. 3,99,998=-00 and the balance 33 numbers of installment amount was of Rs. 2,95,532=00, payable on or within 7th day of each English calendar month on and from o7.02.2004. According to the complainant inspite of making repayment of entire loan amount along with interest the Ops neither issued NOC/no due certificate nor returned back the title deeds and documents which were submitted as collateral security at the time of obtaining loan. Several written correspondences were made in this connection, but to no effect. Thereafter verbal discussion was held by and between the IT Manager of the complainant and the Deputy Branch Manager of the Op-Bank on 30.01.2014 where the Op-Bank directed the complainant for making payment of Rs. 2, 30,379=00 towards full and final settlement of the loan account. On the basis of the verbal assurance of the Op-1 the complainant submitted a demand draft dated 03.02.2014 for Rs. 2, 30,379=00 requesting the Op-Bank to issue NOC and to release all the original documents as submitted by it. The allegation of the complainant is that inspite of making repayment of the loan amount till filing of this complaint, NOC /no due certificate has not been issued by the Op-Bank and the Op did not take any step to return back the original title deeds along with documents to it. By filing this complaint the complainant has sought for certain reliefs. On the contrary, in the written version filed by the Op-1 it is mentioned that apart from the mentioned loan account being no. LDBDN 00001836361 the complainant obtained about eight other loans from the Op and as the complainant has miserably failed to make repayment of the loan amount in connection of those accounts, the Ops are not in a position to issue NOC/no due certificate along with return of original title deeds and other documents to the complainant as prayed for. The Ops have filed several loan account statements before this ld. Forum and we have noticed apart from the instant loan admittedly the complainant obtained loan from the OP being numbers LDBDN00004285172, LDBDN00003213123, LDBDN00005526538, LDBDN00006596274 & LDBDN00003164104. Though the Ops have mentioned in its written version that the complainant had obtained eight loans from the Op-Bank but in pursuance of the calling for the loan document statements, the Ops have filed documents showing another five loan accounts apart from the instant loan account. The loan account statement for LDBDN00004285172 reveals that the said loan account had already been closed (foreclosed). As the status of the said loan account has been mentioned as closed we are not inclined to discuss on the same. In respect of the loan account statement for 00003213123 the status is showing as cancelled, hence need not be explained. The loan account being No. LDBDN00005526538 is showing as active and on 23.4.2015 the current outstanding amount was of Rs. 4, 46,693=00. Therefore, it can be said that the said loan account is on running condition and the complainant during hearing has admitted that the above-mentioned amount is lying as outstanding dues. The loan account statement for LDBDN00006596274 is showing as active and on 23.4.2015 the outstanding dues was of Rs. 1,904=00. The loan account statement for LDBDN00003164104 also shows active and on 23.4.2015 the outstanding dues was of Rs. 1,170=00. Therefore, out of five loan account statements as submitted by the Ops it is seen by us that in respect of the loan account statements there are some outstanding dues which the Ops are entitled to get from the complainant and the during hearing the complainant had admitted the same. According to the Ops until and unless the said outstanding amount as mentioned earlier is recovered from the complainant along with interest, the Ops are not in a position to hand over the NOC/no due certificate along with return of the original deeds and documents as prayed for by the complainant. In this respect it is argued by the ld. Counsel for the complainant is that on several occasions through written correspondences the complainant wanted to know as to how much amount the Ops are entitled to get from the complainant, but the Ops did not make any reply of those written correspondences. As the grievance of the complainant had not been redressed by the Ops hence the complainant had to approach before the Court of Law for its redressal. We have noticed that the complainant sent several e-mail to the Op for knowing as to how much amount he is to pay towards the loan account to the Ops, but no satisfactory answer had been provided by the Ops. For the first time in the written version of the Op-1 it is disclosed that apart from the questioned loan being No. LDBDN 00001836361 the complainant obtained other eight loans from the Ops. But though the Ops have claimed that the complainant obtained eight loans but the Ops are able to submit five loan account statements only.
Though it is an admitted fact there are some amount is lying as outstanding dues in respect of three loan accounts being LDBDN00005526538, LDBDN00006596274 & LDBDN00003164104, but in respect of the questioned loan account i.e. LDBDN 00001836361 the documents of the Ops reveal that there is no outstanding dues, which denotes that the complainant has repaid the entire loan amount along with agreed interest to the Ops in respect of the loan account being no. LDBDN 00001836361. We have also noticed that the instant complaint has been filed in respect of issuance of NOC/no due certificate along with original title deeds and other documents, submitted by the complainant towards collateral security at the time of sanctioning loan being No. LDBDN 00001836361. Therefore, we are to confine as per the petition of complaint within the loan account No. LDBDN 00001836361, not other loan accounts as produced by the Ops. As the outstanding amount as claimed by the Ops in respect of three loan accounts is not related with the questioned loan account hence, Ops cannot get any order from this ld. Forum directing the complainant for making payment of the said loan amount to the Ops. As this is a Consumer Forum, hence through this Forum the Ops cannot recover any outstanding amount from the complainant and for recovery of such amount the Ops may approach before the appropriate forum. As we have seen there is no outstanding dues in respect of the loan being No. LDBDN 00001836361 and no rebuttal is forthcoming from the Ops that the complainant did not repay the loan amount along with interest in respect of the loan account being No. LDBDN 00001836361, hence as per law the Ops are under obligation to hand over NOC/no due certificate along with return of original title deeds and the documents as submitted by the complainant towards collateral security at the time of sanctioning the loan being No. LDBDN 00001836361. As the grievance of the complainant had not been redressed by the Ops before coming to the court of law hence in our view the complainant is entitled to get compensation from the Ops and by filing this complaint as the complainant has incurred some expenditure, it is also entitled to get some litigation cost. Moreover, the activity of the Ops are also suffer from deficiency in service because inspite of making the entire loan repayment towards the questioned loan account, the Ops did not take any action to redress the grievance of the complainant, for which they will under obligation to compensate the complainant.
Going by the foregoing discussion, hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The Ops are directed either jointly or severally to handover the NOC/no due certificate to the complainant along with return of the Original Title Deeds and Documents as submitted by it towards collateral security at the time of sanctioning the loan account No. LDBDN 00001836361 within 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to put the decree in execution as per provisions of law. The Ops are further directed to make payment either jointly or severally compensation to the tune of Rs. 5,000=00 due to unnecessary harassment, financial loss, mental agony and pain of the complainant and litigation cost of Rs. 2,000=00 to the complainant within 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to put the entire decree in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
