Punjab

Rupnagar

CC/15/21

Sant Educational Welfare Society - Complainant(s)

Versus

ING Vyasa Bank Ltd. - Opp.Party(s)

sh. Ram Avtar, Adv

27 Mar 2015

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. : 21 of 26.02.2015

                               Date of decision                 : 27.03.2015

 

Sant Educational Welfare Society, Unit SAS Academy, Rupnagar, through its principal Sh. Rajan Chopra, Simran Nagar, Rupnagar- Morinda Road, Rupnagar.

                                                                                      ......Complainant

                                             Versus

ING Vyasa Bank Ltd. through its Branch Manager, SCO No. 39, Beant Singh Aman Nagar, Bela Road, Rupnagar.

                                                                                     ....Opposite Party

 

                                      Complaint under Section 12 of the                                                                     Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SH. V.K. KHANNA, MEMBER

SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Ram Avtar, Advocate, counsel for the complainant

 

 

ORDER

                             MRS. NEENA SANDHU, PRESIDENT

                   The instant complaint has been filed by Sant Educational Welfare Society under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Party (hereinafter referred to as ‘the O.P.’ only) praying for the following reliefs:-

i)       To pay Rs.4,54,879/- along with interest @ 12% P.A. w.e.f.  13.01.2014,

ii)      To pay Rs.50,000/- as compensation on account of mental harassment,

iii)     To pay Rs.30,000/- as litigation expenses.

 

 

2.                In brief the case of the complainant is that it is an educational welfare society and is running a school under the name & style ‘Sahibzada Ajit Singh Academy’ and it is registered under the Charitable Endowment Act. In the month of September, 2013, the Management committee of the said school approached the O.P. for getting the loan, for expending its infrastructure and the O.P. assured to provide the requisite loan for the said purpose. As per pre-requirement of the O.P. bank, for getting the loan sanctioned, the complainant entered into an agreement on 22.10.2013 with one Smt. Manjit Kaur, for purchase of a plot measuring 200 sq. yds. for a sum of Rs.42,00,000/- and paid to her an amount of Rs.15,00,000/- as earnest money and the date for execution of the sale deed was fixed as 31.03.2014. Similarly, on 03.12.2013, another agreement was entered into with one Smt. Parmjit Kaur, for purchase of land measuring 1 Kanal 19 Marlas, including one show-room measuring 30’x60’ for consideration of Rs.1,45,00,000/- and out of the said amount, an amount of Rs.10,00,000/- was paid to her, as earnest money and the date for execution of the sale deed was fixed as 10.01.2014. After execution of the said agreements, all the documents concerning the same were given to the O.P. for getting the legal opinion and to complete other legal formalities, which were required for sanctioning of the loan amount. As per terms & conditions of the O.P., the complainant had deposited Rs.4,44,946/- with it, as processing fees for the loan amount to the extent of Rs.3,96,00,000/-, on 29.11.2013 through cheque, which was cleared on 30.11.2013. The O.P. had assured the complainant that the amount of loan would be disbursed, as & when desired for the purpose of execution of the sale deeds. The complainant in order to maintain account with one bank only, decided to close other loan accounts and the O.P. had taken over the liability of two loan accounts maintained with State Bank of Patiala i.e. one for Rs.26,00,000/- and the other for Rs.20,00,000/-. After adjustment of the loan amounts of said two accounts i.e. Rs.46,00,000/-, the remaining amount of Rs.3,50,00,000/- was left with the O.P., which was required by the complainant for execution of the above said sale deeds on 10.1.2014. The complainant had informed the O.P. telephonically to arrange money and provide cheque for Rs.1,08,75,000/- because the O.P. had to provide the loan amount to the tune of 75% and remaining 25% margin money was to be paid by the complainant. But the O.P. instead of making arrangement to pay the said amount, kept on postponing the matter on one pretext or the other. The complainant had personally visited the O.P. at about 10.00 A.M. on 10.1.2014 and the Manager of the O.P. bank told that he was arranging money and trying to give the cheque/DD in time, but till 2.00 P.M. on the said day, the money was not arranged. On 11.1.2014, when the concerned computer teacher opened the internet of the Academy, then it was found that one email message was received from the O.P. intimating that one cheque/DD of Rs.1,08,75,000/- was ready to be delivered. The said act & conduct of the O.P. itself casts clouds of doubt on its integrity because photocopy of the cheque in question, which was sent through email shows that it was only a paper transaction done after 2.00 P.M., with the motive to escape from the liability because from the bare reading of the said email message, it is clear that even on 11.1.2014, 12.1.2014 and even on 13.1.2014 draft was not provided to the complainant. Ultimately, due to non-payment of the loan amount by the O.P., the sale deed, which was required to be executed on 10.1.2014, could not be got executed and the complainant had to face trouble and a very acute difficulty arose for it, because as per terms & conditions of the sale agreement, the amount of earnest money of Rs.10,00,000/- was to be forfeited. With great persuasion and with the intervention of respectable, the seller party i.e. Smt. Paramjit Kaur, agreed to extend the date of execution of the sale deed and fresh agreement was executed on 13.1.2014, vide which the date of execution of the sale deed was extended upto 28.4.2014, after payment of Rs.20,00,000/- in advance. The statement of account of the Academy for the period from 1.11.2013 to 20.01.2015 shows that an amount of Rs.1,08,75,000/- was shown as disbursed amount to the complainant and on the other hand, the O.P. had cancelled the pay order of Rs.1,08,75,000/- and even charged interest in the sum of Rs.11,619.85 for three days. From all these facts, it is clear that the O.P. was not capable to provide the loan and had wrongly charged the processing fee from the complainant. The O.P. had, thus, played a fraud with the complainant and had failed to keep its promise, which amounts to deficiency in service on its part. Moreover, the O.P. had refused to sanction the loan for the said purpose, due to which the complainant has to bear loss of Rs.50,000/- because to obtain loan from another bank, it had to pay the charges for legal opinion, processing charges, mortgage charges and had to complete all the formalities and it was thereafter, that the complainant could get the sale deeds executed in favour of the Academy. Not only this, due to non-execution of sale deed in time, the seller party had backed out to sell the showroom, which was also subject matter of the agreement to sell dated 3.12.2013, which happened due to the fault of the O.P. The complainant had requested the O.P. to refund the processing charges including other damages, caused to it, but the O.P. vide its letter dated 21.1.2015 has refused to refund any money, saying that the processing charges are non-refundable. The complainant is consumer under the O.P. Hence, this complaint against committing of deficiency in service and cheating on the part of the O.P.

 

3.                We have heard the learned counsel for the complainant and gone through the documents furnished by the complainant alongwith the complaint as well as during course of arguments.

 

4.                The question for consideration in this case is as to whether the complainant falls within the definition of ‘consumer’ as defined in Section 2 (1) (d) of the Act, which reads as under:-

“ ‘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 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 purpose of earning his livelihood by means of self-employment.].”

 

5.                The learned counsel for the complainant submitted that the complainant is an Educational          Society, registered under the Societies Registration Act, 1860, as is evident from the copy of Certificate produced before this Forum, and is running a school to impart education to the students on charitable basis and is also registered under the Charitable Endowments Act, 1890, as such, the motive of the complainant is benevolent, for a social cause, and not for making profits and it is running the school on the charitable basis and not for commercial purpose, hence, it is consumer as per Section 2(1)(d)of the Act. He further submitted that the complainant had approached the O.P. to obtain loan for expansion of infrastructure, but the O.P. did not disburse the same, therefore, it requested the O.P. to refund the processing charges already paid by it & other charges borne by it for obtaining loan from other  Bank alongwith damages suffered by it, but the O.P. refused to pay the same, hence, this complaint.

 

6.                From the copy of the Certificate produced by the learned counsel for the complainant at the time of addressing arguments, which has been marked as ‘A’, it is apparent that the complainant has been registered under the Societies Registration Act, 1860, but in support of his version that it is also registered under the Charitable Endowments Act, 1890, he has not produced any certificate issued in its favour to that effect. However, he has produced the copies of the order issued by the Income Tax Department. At the time of arguments, a specific query was put to the learned counsel, whether the complainant is imparting education to all the students, free of cost. His answer was that the complainant charges the tuition fee etc. from the students. Whatever be the nature of its object, the fact remains that the complainant society has been running the educational institution by collecting fee etc. from the students, thus, it cannot be said that the school being run by it is solely on charitable basis and not for earning profits. Even this fact cannot be ignored that the complainant had applied for an huge amount of loan in crores i.e. to the extent of Rs.3,96,00,000/-, for which it had even paid processing fee of Rs.4,44,946/- to the O.P. It is also not the case of the complainant that it is running the school for earning its livelihood by means of self-employment.

 

                   As per Section 2(1)(d)(ii) of Act, reproduced supra, to become a ‘consumer’, the complainant was required to plead & prove that the services of the O.P. in the form of raising of loan were being availed by it exclusively for the purpose of earning livelihood by means of self-employment. It is very much clear from the definition of ‘consumer’ that its intention is to exclude big business and industrial houses carrying out business with profit motive from the purview of the Act. However, if the case comes within the scope of ambit of explanation annexed to Sec. 2 (1)(d) of the Act, referred to above, the complaint can well be filed where the goods were bought or services hired by the said concerns exclusively for earning their livelihood by means of self employment. As per above said provision of Section 2(1) (d)(ii) of the Act, the complainant does not fall within the definition of “consumer”.  In the case of ‘Kalpavruksha Charitable Trust vs. Toshniwal Brothers (Bombay)’ 2000(1) SCC 512, the Hon’ble Supreme Court has held that since the service rendered by the appellant (Trust) is not free, therefore, the goods (machinery), which were obtained by the said Trust were being used for commercial purpose. In the case of—‘Virender Kashyap vs. Lufthansa German Airlines & Anr.’ IV(2003) CPJ 696, the Hon’ble Delhi State Commission has held that after 15.3.2003, i.e. after coming into force of the Amending Act of 2002, the position has entirely changed and a person who avails of services for any commercial purpose is not a consumer within the meaning of Sec. 2(1) (d) (ii) of the Act.

 

7.                In view of the aforesaid discussion, the complainant is not consumer within the meaning of Section 2 (1) (d) (ii) of the Act and the instant complaint, being not maintainable, is liable to be dismissed. Accordingly, we dismiss the same in limini, with no order as to costs.

 

                             A certified copy of this order be supplied to complainant forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to the Record Room.

 

ANNOUNCED                                                    (NEENA SANDHU)

Dated: 27.03.2015                                                          PRESIDENT

 

                                                          (V.K. KHANNA)

                                                                              MEMBER

 

                                                          (SHAVINDER KAUR)

                                                                              MEMBER.