Date of Filing: 20/06/2011
Date of Order: 10/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 10th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1118 OF 2011
M/s. Sri Marikomba Stoneware Pipes,
Manufacturers of Stoneware Pipes & Fittings,
R/at: No.91/1, Kodur Village,
Tekal Road, Malur Taluk,
Rep. by its Managing Partner
Sri. A. Narayanappa.
(Rep. by Advocate C.N. Sreevathsa)` Complainant.
-V/s-
1) The Branch Manager,
ICICI Bank, Mytree Centre,
No.4/10, Hosur Road, EMCT Division,
Bomanahalli, Bangalore-560 068.
(Rep. by Advocate V. Suresh)
2) The Manager,
Magma Fincorp Limited,
No.40, Foundation House,
4th Floor, 2nd Main, CKC Garden,
Machine Road,
BANGALORE-560 027.
(Rep. by Advocate Jai.M.Patil) Opposite parties.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to issue the cancellation of HP to the RTO, KGF of issuing ‘No Due Certificate’ stating that the loan has been cleared and to pay compensation of Rs.50,000/- to the complainant, are necessary:-
The complainant has availed a loan from the opposite party No.1 for purchasing the commercial vehicle bearing No.KA-08-2984 for Rs.4,68,500/-. The complainant had to pay EMIs of Rs.12,432/- per month to the opposite party No.1 for 47 months. During mid 2008 and beginning of 2009 due to financial crises the complainant could not pay the EMIs. In PLC No.91359/2009 from District Legal Service Authority, Bangalore, the complainant was issued with a notice asking him to appear before the 17th Additional Chief MMTC., City Civil Court Complex, Bangalore, regarding the complaint of opposite party with respect to the balance of Rs.88,160/-. Accordingly, the complainant appeared before the said authority on 22.04.2009 and paid Rs.30,500/- by cash and agreed to pay the balance amount in eight installments along with the regular EMIs on or before 30th of every month and in case the complainant failed to pay the amount the opposite party can recover the entire amount in lumpsum and an order was passed accordingly. On 15.09.2009 the first opposite party issued a letter to the complainant asking him to pay the loan amount to the second opposite party. Accordingly, the complainant started paying the amount regularly to the second opposite party. The complainant had repaid the entire loan amount and requested the second opposite party go give letter terminating the HP, but the opposite party No.2 had issued a letter claiming Rs.1,34,428.61 paise and cheque bouncing charges of Rs.1000/-. This is against the order passed by the Lok Adalath. Hence the complainant had issued a notice to the opposite parties on 19.05.2011 as it has not been complied with this complaint is filed.
2(a). In brief the version of the opposite party No.1 are:-
The complainant is not a consumer. This forum has no territorial jurisdiction. Since as per the clause enumerated the jurisdiction of the Forum at Mumbai alone has jurisdiction. The matter cannot be decided in a summery way. It is a contractual and commercial in nature. The complainant availed a loan for purchase of the vehicle which has to be repaid in 47 EMIs; along for the penal interest for delayed payments, late fee charges, etc.,. As admitted by the complainant he has defaulted in payment of EMIs, hence late fee charges and other charges have been added. The pre-litigation has started before the concerned court after issue of the notice and an order was passed directing the complainant to pay Rs.88,160/- amount due along with regular EMIs. Meanwhile the opposite party has taken recourse to the Securitization Act and sold the said debt of the complainant to the opposite party No.2 by virtue of Deed of Assignment dated: 23.06.2009. This was informed to the complainant on 15.09.2009 and was asked to pay and continue to pay the loan amount due to the second opposite party. After this the opposite party has no knowledge what the complainant did with the opposite party No.2. The complaint is bad for misjoinder of necessary parties. The complainant had defaulted in payment of the amount as ordered and agreed before the Legal Service Authority. All the allegations to the contrary are denied.
2(b). In brief the version of opposite party No.2 are:-
The complainant approached and sought for commercial vehicle loan for the purpose of his business activity from the opposite party No.1 and obtained a loan of Rs.4,68,500/- and entered in to an agreement on 03.11.2006 agreeing to repay the same in EMIs of Rs.12,432/- per month for 47 months. As he has not repaid the opposite party No.1 had raised a pre-litigation dispute before the District Legal Service Authority, Bangalore. An order was passed by the authority on 22.04.2009. Accordingly the complainant had to pay Rs.30,500/- on that day and remaining EMIs shall be paid on or before 30th of every month along with the existing EMIs, that he has not paid and he has failed and omitted to pay. Hence the complainant had committed breach of the agreement and the opposite party was entitled to recover the entire outstanding amount and issued notice in Form-35 which is just and proper. This opposite party has taken over the debt of complainant. The complainant is due the amount claimed. Hence the complaint may be dismissed.
3. To substantiate their respective cases, the parties have filed their respective affidavits and certain documents. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether the complainant is a consumer?
- Whether the complaint is bad for misjoinder of necessary parties?
- Whether there is deficiency in service/unfair trade practice?
- What order?
5. Our findings on the above points are:-
Point (A):In the Negative
Point (B): In the Positive
Point (C):In the Negative
Point (D) : As per the final order
For the following:-
REASONS
POINT (A) to (D):-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact the complainant is a manufacturer of Stoneware Pipes and Fittings and for its commercial purpose the complainant has purchased the commercial vehicle bearing registration No.KA-08-2984 obtaining a loan from the first opposite party agreeing to repay it in EMIs of Rs.12,432/- per month commencing from 03.11.2006. It is also an admitted fact that in the middle of 2008 and the beginning of 2009 the complainant committed default in payment of the EMIs. The loan agreement he is bound to pay penal interest, late fee charges, etc.,. The opposite party No.1 raised a pre-litigation dispute before the Legal Service Authority i.e., before 17th Additional Chief MMTC., City Civil Court Complex, Bangalore, in PLC No.91359/2009. Accordingly on 22.04.2009 the complainant appeared before the concerned authority and paid Rs.30,500/- on that day wherein an order was passed on 22.04.2009 which reads thus:-
“The second party has agreed to pay due amount of Rs.88,160/- towards regularization of his loan amount in 9 installments of Rs.30,500/- payable on today dated: 22.04.2009 remaining eight installments of Rs.72,075/- each payable on or before 30th of every month. Commencing from 01.05.2009, and further, 2nd party has agreed to pay future EMI’s regularly as and when each of them becomes due. However 1st party is at liberty to recover entire claim amount in one lumpsum. If 2nd party commits default in payment and above installments as agreed. Today 2nd part has paid cash of Rs.30,500/- to first party.”
That is to say that the complainant had agreed to pay the amount due as on that day i.e., Rs.88,160/- in 9 installments and he paid Rs.30,500/- as the first installment and the remaining amount of Rs.72,075/- in 8 equal installments to be paid on or before 30th of every month; agreed to pay the balance EMIs from that day with the due EMIs and in case of default the opposite party can recover the entire amount. The complainant has not complied with the said order, he has not paid the installments regularly i.e., both the regular EMIs as well as the due EMIs as agreed before the Lok Adalath. It is also an undisputed fact that the opposite party No.1 exercised its rights under the Securitization Act had sold the debt of the complainant/assigned the debt of the complainant to opposite party No.2 and written to the complainant on 15/09/2009. As such the complainant has transacted only with the opposite party No.2 and paid certain amount. Thereafter it stopped transacting with opposite party No.1.
7. As per the intimation to the complainant by the opposite party No.1, opposite party No.1 seized to have any contract with the complainant with respect to the loan in question from that day onwards it has been assigned to the opposite party No.2 and acted upon by the complainant. The complaint as such as against opposite party No.1 is bad for misjoinder of necessary parties.
8. Further the complainant had obtained the financial assistance for commercial purpose. The complainant never said that it is for eking-out its livelihood! there is no such allegation. Here the vehicle has been purchased by the complainant for commercial purpose obtaining the commercial loan. Hence it cannot be termed to be a consumer. In 2011 CTJ 121 the Apex Court has ruled thus:-
“If the goods are purchased for the commercial purpose of earning more profits then there can be no dispute that even the services offered along with them have to be for the same purpose.”
In 2011 CTJ 387 the National Commission has ruled thus:-
“The intention of Parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘Consumer’ is to impose a restriction that the special remedy before the Consumer forums can be invoked only by ordinary consumers buying goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.”
That means to say the complainant is not a consumer and the dispute is not a consumer dispute.
9. Further in this case as the complainant has committed default, the opposite party No.2 has issued Form-35 for recovery of the amounts due. There is no illegality or irregularity in the said Act. Anyway what is the loan? When it has been paid? what is the delay? Whether opposite party No.2 is entitled to penal interest, late fee charges, cheque bouncing charges? Requires detailed evidence detailed cross-examination which cannot be decided in a summery way. Anyway as admitted there is default by the complainant in paying the regular EMIs and also the installments as agreed before the District Legal Service Authority. Hence the opposite party No.2 is entitled to claim the entire amount in lumpsum which they are claiming. Hence it cannot be said there is any deficiency in service. If the complainant is entitled to, it can approach the Civil court seeking relief for which this order cannot come in that way. The complainant cited the decision in 2010(1) CPJ 111. There is no dispute above the proposition of law laid down therein. Hence the facts and circumstances of that case is not applicable to the facts and circumstances of this case and distinguishing the said judgment will only bulk and bulge the records which is impermissible as under Regulation 18(5) of the Consumer Protection Regulation (2005). Hence it has not been quoted in extenso. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 10th Day of August 2011)
MEMBER PRESIDENT
