Date of Filing: 16/07/2011

        Date of Order: 30/07/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  30^th DAY OF JULY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 1314 OF 2011

Smt. Shreelatha Nayak,

W/o. Sri. Ajith Nayak,

# 85, ‘Pratima’, 8^th Main,

Sector I, Nobo Nagar, SOS PO,

Bannerghatta Road,

BANGALORE-560 076.                                          

(Rep. by in-person)                                                                Complainant.

-V/s-

1) ICICI Bank,

# 5, R.G. Chambers, II Floor,

7^th Block, 80 ft. Road,

Industrial Layout,

Bangalore-560 034, and

2) Sri. Ajith Nayak,

S/o. Panduranga Nayak,

Software Engineer, IBM,

Subramanya Arcade, # 12,

Bannerghatta Road,

Bangalore-560 029.                                                          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 (a) not to be taken necessary steps to cancel the guarantee/co-obligant’ offered by the complainant, compensation/damages of Rs.10,00,000/-, (b) compensated to the tune of Rs.10,000/- for mental agony caused in the due course, (c) Costs of litigation may also be awarded Rs.5,000/-, are necessary:-

            The complainant and the opposite party No.2 were married each other on 26.11.2007 at Manipal and made their matrimonial home at Bangalore.  The opposite party No.2 availed the loan of Rs.26,00,000/- from the opposite party No.1 in the year 2008 for the purchase of a Flat in Srinidhi Enclave, Flat No. B-S-3, No.3801/1, Chikkakammanahalli Main Road, Bangalore-76 in loan account No. NHBNG00000739487 on the forced surety/co-obligant/guarantee of the complainant.  During December-2009 the opposite party No.2 shifted the residence from the said flat to a rented flat at No.8^th Main, Sector-I, NoboNagar, SOS PO, Bannerghatta Road, Bangalore-76.  Thereafter dispute arose between the complainant and the opposite party No.2.  The complainant wrote to opposite party No.1 on 06.01.2010 seeking withdrawal of her coobligant/guarantorship of the said loan.  There was no response.  Because of mental and physical torture by opposite party No.2 she also lodged a complaint on 24.04.2010 Under Domestic Violence Act.  The opposite party No.2 ran away from the residence on 30.05.2010 without giving his whereabouts.  Hence the police complaint was lodged on 30.05.2010.  The opposite party No.2 also filed a Divorce Petition before the jurisdictional family Court seeking divorce.  The opposite party No.2 is not traceable.  The complainant also issued a notice to the opposite party No.1 for cancellation of her guarantorship and also wrote to the Ombudsman in this regard.  As nothing has happened, hence this complaint seeking above directions.

2.        Heard the complainant.   

3.        The points that arise for our consideration are:-

1. Whether there is any prima facie or any deficiency in service on the part of the opposite party No.2? / Whether complainant is a “Consumer”?
2. What order?

4.        Our findings on the above points are:-

            Point (A) & (B)        :           As per the final order

For the following:-

REASONS

POINT (A) & (B):-

5.        Reading the complaint in conjunction with the documents on record it is seen that the complainant and the opposite party No.2 got married on 26.11.2007 and lived happily for some time.  It is further alleged that the opposite party No.2 had purchased a flat at Srinidhi Enclave, Flat No. B-S-3, No.3801/1, Chikkakammanahalli Main Road, Bangalore-76, by obtaining a loan of Rs.26,00,000/- from opposite party No.1 on the guarantorship of the complainant.  What are the terms and conditions of the loan? is not explained by the complainant.  Nor any loan documents are produced by the complainant.  It is a bald plea.  When the loan was sanctioned? To whom the amount paid?  what was the EMIs? How much is repaid?  What is the balance?  Who paid EMI’s and how?  All remains? Then how can we say that the opposite party No.1 has committed any deficiency in service or unfair trade practice.  There is no such allegation of unfair trade practice or deficiency in service that has been made.

6.        It is also stated by the complainant that she had filed a complaint under Domestic Violence Act against the opposite party No.2.  What is the Domestic Violence committed?  When committed?  What is the case?  What is the case number? Is not at all stated.  It is as bald as it could be.

7.        Further the complainant has stated that she has given a missing complaint against her husband with the jurisdictional police.  The complainant has produced the copy of the FIR registered in Crime No.223/2010, dated: 31.05.2010 stating that her husband is missing and ran away from the house.  In any event the complainant has stated that her husband that is the opposite party No.2 had filed a petition for divorce against her.  Anyway as the second opposite party has filed a petition for divorce, she will be knowing the address of her husband.  Then how can she say that her husband ran away.  This clearly goes to show that there is a strong ill will between the complainant and the opposite party No.2.  Even that may be a cause for divorce petition.  That is all.  What is the stand of the  complainant in the divorce petition or the case number of the divorce petition.  It is as vague as it could be.  Anyway it only shows that there is disharmony between the complainant and the opposite party No.2.  That disharmony has to be settled in a family court or in the criminal court for which this order will not come in the way.

8.        Further it is seen that the complainant has issued notice on 06.01.2010 to the opposite party No.1 for deleting her name from the guarantorship and also another notice dated: 11.02.2011.  To that notice the opposite parties have replied thus:-

That is to say the opposite parties wanted the complainant to approach them and speak to their customer service Manager so that they can do something in the matter.  In spite of that the complainant has not gone or met nobody, but has written a letter to the Ombudsmen on 14.03.2011.  The said letter reads thus

This letter speaks for itself.  To this the Ombudsmen on 31.03.2011 has written to the complainant reads thus:-

“Please refer to your complaint dated: March 14, 2011 against the captioned bank.  In this connection we have been informed by the bank that it has advised you to comply with certain requirements for deletion of you name as co-obligant.  You may please follow up with the bank in this regard.  We have advised them to provide you with certified copies of the loan documents and closed the complaint under Clause 13(a) (not on the grounds of complaint referred to in clause 8 or otherwise not in accordance with sub clause (3) or Clause 9) of the Banking Ombudsman Scheme, 2006.

This is issued as per the orders of the Banking Ombudsman.’

That is to say the complainant was asked to contact the concerned Bank as she has to do certain requirements for deletion of her name from the guarantorship and the Bank was also directed to give the certified copies of the documents to her.  All those things have been suppressed by the complainant.  These are produced by the complainant herself.  Here the ombudsmen has directed the complainant to approach the Bank to do the needful for deleting her name for which she has not done, she has come to this forum directly and her prayer is un-understandable, even the notice issued to the Bank by the complainant, there is no meaning at all.

9.        Hence under these circumstances it is purely a contract between the complainant on one side and the opposite party No.2 on the other side.  If the complainant does not want her guarantorship she is at liberty to move any authority the opposite parties.  In spite of her giving notice if opposite party  insist on taking the recourse to the guarantorship then she can move appropriate authority and not otherwise. 

10.      Further the complainant is not a consumer coming within the purview of Section 2(d) of the C.P. Act.  Section 2(d) of the C.P. act reads thus:-

2(d) “CONSUMER” means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) {hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who {hires or avails of} the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person {but does not include a person who avails of such services for any commercial purpose}

{Explanation-For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;}

That means to say a person buying any goods or services for consideration alone is the consumer.  In this case the complainant has not paid any money to the opposite party No.1 to become the guarantor of the opposite party No.2.  It is opposite party No.2 who has purchased, in the sense who had taken a loan for his purpose and no money is transacted between the complainant on one side and the opposite party No.1 on the other side.  Hence the complainant is not a consumer at all.  Hence the complaint is not maintainable.

ORDER

1.        The complaint is Dismissed.

2.        However under these circumstances the opposite party No.1 shall consider the order of the Ombudsman as stated supra and pass appropriate orders regarding the deletion of the complainant from the guarantorship of the loan account of the opposite party No.2 within 30 days from the date of this order.

3.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

4.       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 30^th  Day of July 2011)

MEMBER                                               MEMBER                                         PRESIDENT