(Delivered on 01/02/2023)

PER SHRI K.M. LAWANDE, HON’BLE  MEMBER.`

1.         This appeal is arisen out of the judgment and order of District Forum, Chandrapur in Consumer Complaint No.30/2015 decided on 17/06/2017. This appeal is filed by the appellant who is the opponent and the respondent is the complainant in the said complaint. (Parties are herein after referred to as opponent and complainant as per their status in the original consumer complaint and the District Consumer Dispute Redressal Forum is referred to as District Forum for the sake of convenience).

2.         It is the case of complainant that he obtained loans  for purchase of  two machines bearing RTO registration number CG-04/DB-2817 (CAT 424 Model) and MH-29/V- 2141 (ACE Hydra 12 tonnes Model). These machines are purchased for self employment purpose. He obtained loan of Rs.8 lakhs from opponent for purchase of Hydra machine and it was to be repaid by paying first installment of Rs.33,098/- and further 34 monthly  instalments of Rs.28,926/- He repaid  both the loans by paying instalments regularly. However, when he sought statement of account from opponent in May 2014; that time, opponent asked the complainant to pay Rs. 6,190/- towards the loan of CAT machine and Rs. 2,40,953/- towards the ACE Hydra machine till 31/ 05/201. He deposited Rs. 61,900/-in the loan account of the CAT machine and Rs. 1,40,900/- in the account of Hydra machine. He had suspicion that opponent wrongly asked the amounts from him, therefore, asked the repayment details from the opponent and observed that the opponent did not make the entries of the some payments made by the complainant. The statement is stating that he has deposited Rs. 12,62,938/- and there is arrears of Rs. 1,63,604/- from him. It is alleged that there is variation in the receipts of the payment and statement of account. The opponent has not taken the entries of payment of Rs.4,35,776/- in the  statement of account. It is contended that, if the amount of Rs. 1,63,604/- (amount shown as arrears) is deducted from the amount of Rs.4,35,776/- (amount not shown deposited), that amount comes to Rs. 2,72,172/- for which the complainant is  entitled to receive it back from the opponent. He  has also right to receive the amount of Rs. 4,35,776/-, which is not shown for deposited. The opponent did not issue the NOC certificate to him. He has also filed the complaint to police. The opponent is also trying to repossess the vehicle, However, they could not repossess the vehicle as complainant has removed the tyres of the Hydra vehicle. Alleging deficiency on the part of opponent, he has filed the consumer complaint for directions to the opponent to issue NOC certificate and refund Rs. 4,35,776/- with 12% interest p.a., the amount of Rs. 50,000/- towards mental and physical agony and Rs.10.000/- towards the  cost of litigation is also sought.

3.         The opponent filed the written statement before the District Forum and contested the complaint and denied the rival allegations. It is contended that the complainant purchased the machines for commercial purpose and not for self employment. It is denied that the opponent failed to take entries of deposit of Rs. 4,35,476/- in the statement of account.   It is contended that the complainant was not regular in repaying the installments for the loan obtained.  He is liable to pay for penal interest for delayed payment also. It is contended that the complainant obtained four loans from the opponent for the purchase of Hydra machine ,CAT back loader machine, back loader machine and child loan. The amounts are  Rs.10,16,582/-, Rs.6,00,438/-, Rs.23,61,630/- and Rs. 2,44,000/- are the amounts of respective loans .The complainant has suppressed this fact.

4.         The District Forum partly allowed the complaint and directed the opponent to issue NOC to the complainant within 30 days. The District Forum also awarded Rs. 25,000/- towards physical and mental agony and Rs.5,000/- towards the cost of litigation.

 5.         Being aggrieved by the judgment and order of District Forum ,the opponent has filed this appeal.

6.         Ld. Advocate Shri. M.S.Meshram appeared for the opponent/appellant. The complainant/respondent remained  absent though  served and is proceeded exparte.

 7.        After respective submissions of the parties, following points arose for our determination. We have noted them and answered them for the reasons to follow.

REASONING

Points 1, 2 :-

8.         The ld. Advocate Shri.  Meshram argued for the opponent that the District Forum failed to consider that the complainant obtained 4 loans, three for the purchase of commercial vehicles which are not operated by him. Said vehicle are purchased by the complainant for earning profit and not for self employment. He has not brought any evidence that he is skilled to operate or drive the said vehicles. The District Forum failed to consider that the complainant was  defaulter and he never deposited monthly installments on time and many of the cheques issued by him were also dishonored. The District Forum wrongly came to the conclusion that the complainant has deposited sufficient amount and appellant is liable to issue him NOC  certificate. The District Forum is not having the legal jurisdiction  of  on redemption /interpretation of Bank accounts and recovery  of amount and that this issue can be decided by the Civil Court only. The complainant should had approached the Ombudsman for redressal of his grievance. The District Forum  failed to consider that opponent is a finance company, operating on investment by public and governed by the RBI guidelines and has every right to recover the losses caused by the default of the borrower. The opponent is submitting the statement of account maintained  by the Bank which shows that complainant was due to pay in arrears of  Rs. 2,18,110/- as on 27/05/2014 and Rs. 3,55 ,745/- in October  2017. The District Forum wrongly awarded huge amount of compensation of Rs. 30,000/- towards mental and physical agony and  Rs.5,000/- towards the cost of litigation .

            To support his contention that the complainant is not covered under the definition of consumer, the ld. Advocate relied upon following judgements

(i)         Hon. Apex Court  in Lakshmi Engineering Works versus PSG industrial Institute, Civil Appeal 4193 of 1995 dt. 04/04/1995, AIR 1995SC1428

(ii)        Hon. National Commission in Joginder Singh versus Cholamandalam DBS Finance Limited, R.P. No. 2909 of 2010 decided on 20/01/2011,reported in I(2011)CPJ264 (NC), wherein the National Commission held that purchasing of more than one vehicle for doing transport business amounts to commercial purpose.

(iii.)      Hon. National Commission in Vishal Roadways versus Economic Traders Gujarat Limited in R.P.298 of 1996 decided on 03/09/1998,reported in 1998(3)CPR 28 (NC), wherein the National Commission held that allegations made in the complaint did not spell out a case of hiring of service and suffering from deficiency. Rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of accounts. The complainant did not fall within the ambit of section 2(1)(C ) and (e ) of Consumer Protection Act 1986. Civil suit was the proper remedy to recover the amount paid in excess. The District Forum and the State Commission had no jurisdiction to entertain the complaint which was beyond the scope of Consumer Protection Act.

(iv).      SCDRC, Maharashtra, Main Bench Mumbai, in Rupee Co-operative bank limited versus Ashok Gendba Jadhav in FA No. 762/2008 decided on 16/02/2008,wherein the State Commission allowed the appeal, quashed and set aside the order of District Forum and dismissed the complaint.

(v)        SCDRC, Maharashtra, Nagpur bench in Mahindra and Mahindra Financial Services Limited versus Sachin Santosh Bhojane in first appeal No.765/07 decided on 01/04/2014, wherein the Commission upheld the action if Opponent Bank  in charging penal interest due to delayed repayments of installments by the complainant

(vi).      Hon. National Commission in Messrs House of Dubary Vs. New Bank of India and others in Original Petition No. 29 of 1989 ,decided on 22/09/1989 held  that the complainant had a number of accounts with the opponent Bank by way of current account, overdraft account, fixed deposit accounts etc. The grant of the relief of redention of accounts in relation to transactions with the bank is not within the scope of the provisions of the Consumer Protection Act and the averments in the petition do not make out any deficiency in the service rendered by the Bank. The National Commission further held that the redention of accounts by the bank and the recovery of amount that may be found due as a result of settlement of accounts are reliefs that can be obtained only by recourse  to a suit in the Civil Court provided the claim is not already time barred under the law of limitation.

9.         Discussions

            The complainant in consumer complaint has pleaded that she obtained two loans for two different types of machines/ vehicles from the opponent.

            It is contended by the opponent in WS that the complainant obtained four loans from the opponent for the purchase of Hydra machine ,CAT back loader machine, back loader machine and child loan. The amounts are Rs.10,16 582/- , Rs 6,00,438/-, Rs.23,61,630/- and Rs. 2,44,000/- are the amounts of respective loans .The complainant has suppressed this fact.

            It is contended by opponent that the complainant purchased the machines for commercial purpose and not for self employment and therefore complainant is not a consumer within the meaning of Section 2(i)(d)of the Consumer Protection Act,1986. The Id. advocate of the opponent relied upon (1) Lakshmi Engineering Works and (2) Joginder Singh judgements of Hon. Apex Court and Hon. National Commission ,cited Supra to support his contention. In view of placitum of these judgements, we are inclined to hold that complainant is not covered within the ambit of consumer as defined under Section 2(i)(d) of the Consumer Protection Act.  Keeping reliance of the judgments of Hon. Supreme Court and Hon. National Commission, the ld. advocate of the opponent has also contended that the Consumer Foras have no jurisdiction of redention/interpretation of Statement of Accounts maintained by the Banks and therefore the directions given by entertaining the consumer complaint is illegality on the part of Consumer Forum. Keeping reliance on the ratio laid down by the Hon. Supreme Court and National Commission in Vishal Roadways and Sachin Bhojne judgements, cited supra, produced before us by the ld Advocate of the opponent, we are also inclined to hold  that the Consumer Foras  are not entitled to redention of the statement of accounts. Accordingly, we answer point No.1 in negative.

(10)     The District Forum partly allowed the  complaint and directed the opponent to issue NOC to the complainant within 30 days. The District Forum also awarded Rs. 25,000/- towards physical and mental agony and Rs.5,000/- towards the cost of litigation. However, in view aforesaid discussion, it reveals that the District Forum has wrongly decided the consumer complaint considering complainant is consumer of opponent. It reveals that the District Forum erroneously attempted in rendition of statement of account maintained by opponent, when it is not their jurisdiction. Therefore, observation of district forum that the loan is totally repaid and complainant entitled for NOC is unwarranted. Therefore, there requires interference in the  judgement and order of District Forum by quashing and setting it aside. Accordingly, we answer point No.2 in affirmative.

            In the circumstances, we pass the following order.

ORDER

(i)         Appeal No. A/17/451 is allowed. Judgement and order of District Forum, Chandrapur in Consumer Complaint No. 30/2015 is quashed and set aside.

(ii)        The Consumer Complaint No. 30/2015 before the District Forum, Chandrapur is dismissed.

(iii)       No order as to cost.

(iv)       Copy of order be furnished to both the parties, free of cost.