DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT AT AMRITSAR, PUNJAB.
Complaint Case No : RBT/CC/18/161
Date of Institution : 28.02.2018/29.11.2021
Date of Decision : 15.09.2022
M/s Akshara Fabrics, 162, Anand Avenue, Amritsar through its Proprietor Ms. Neetu Sadana. …Complainant
Versus
Kotak Mahindra Bank, The Mall, Amritsar through its Branch Manager.
…Opposite Party
Complaint under Section 12 and 13 of The Consumer Protection Act as amended up to date
Present: Sh. Sumesh Sharma Adv counsel for complainant.
Sh. Sandeep Kapoor Adv counsel for opposite party.
Quorum.-
1. Sh. Ashish Kumar Grover : President
2. Sh. Navdeep Kumar Garg : Member
(ORDER BY ASHISH KUMAR GROVER PRESIDENT):
The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The complainant filed the present complaint under Section 12 and 13 of the Consumer Protection Act against Kotak Mahindra Bank, Amritsar. (in short the opposite party).
2. The facts leading to the present complaint as stated by the complainant are that the complainant is the sole proprietor firm and Ms Neetu Sadana is its Proprietor who is doing the business for earning her livelihood by way of self employment. The complainant approached the ING Vysya Bank for grant of loan facility in the form of CC Limit to the tune of Rs. 15 lacs who accepted request of the complainant and granted facility of CC limit loan of Rs. 15 lacs upon execution of necessary loan security documents. It is further alleged that a loan account in the name of the complainant also opened by the said bank.
3. It is further alleged that after grant of said CC Limit facility to the complainant ING Vysya Bank merged into Kotak Mahindra Bank and now the complainant is consumer of the opposite party. But the opposite party illegally and contrary to the terms and conditions debited the loan Account No. 617044013824 under the guise of bank charges to which the opposite party was never entitled to. The loan account of the complainant was illegally debited with Rs. 16,854/- on 31.7.2013, Rs. 6,741/- on 30.8.2014, Rs. 17,100/- on 24.6.2015, Rs. 16,911.90 on 1.8.2016 and loan account of the complainant debited by Rs. 34,500/- as foreclosure charges vide debit entry debited 9.8.2016. The complainant made several requests to the opposite party to reverse the illegal entries made by the opposite party but to no effect. The complainant also requested the opposite party to supply the copies of loan security documents so executed by him in favour of the opposite party bank but the opposite party put off the matter on one pretext or another. So, the complainant had no option except to close the CC limit availed by it from opposite party by repaying the amount lying in the loan account. At the time of closing of loan account the complainant also requested to return the blank signed security cheques give to the opposite party alongwith no due certificate but neither the signed blank cheques have been returned nor no due certificate has been given to the complainant. The copies of loan security documents so executed by the complainant in favour of opposite party bank have not been supplied to the complainant inspite of repeated requests. The said act of the opposite party amounts to deficiency in service and unfair trade practice on the part of opposite party. Hence, the present complaint is filed seeking the following reliefs.-
1) The opposite party may be directed to reverse the amount of respective illegal debited entries made to the loan account of the complainant i.e. Rs. 16,854/- on 31.7.2013, Rs. 6,741/- on 30.8.2014, Rs. 17,100/- on 24.6.2015, Rs. 16,911.90 on 1.8.2016 and to pay the amount of illegal entries alongwith interest at the rate of 18% per annum with monthly rest till the date of payment to the complainant.
2) The opposite party be also directed to refund the amount of Rs. 34,500/- illegally debited to the account of the complainant under the garb of foreclosure charges alongwith interest at the rate of 18% per annum with monthly rest till the date of payment to the complainant.
3) Opposite party be directed to return the blank signed security cheques given to the opposite party by the complainant.
4) Opposite party be directed to supply the certified copies of loan security documents executed by the complainant.
5) Opposite party be directed to pay compensation of Rs. 1.5 lacs to the complainant.
6) Opposite party be directed to pay Rs. 15,000/- as costs of litigation.
7) Any other relief to which the complainant may found entitled.
4. Upon notice of this complaint, the opposite party filed written statement taking preliminary objections that the present complaint is liable to be dismissed under the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 as no cause of action has arisen to the complainant to file the present complaint against the opposite party. The complainant has concealed true facts from this Forum so the present complaint is not maintainable. The complainant has not approached this Forum with clean hands. This Forum has no jurisdiction to try and decide the present complaint. The complainant played fraud on this Forum by stating that the complainant has availed the facility of CC limit for earning his livelihood by way of self employment. The complainant is involved in commercial activity of clothes and other dress materials and CC limit was availed for working capital purpose of the said business, so the present complaint is liable to be dismissed. Further, the complainant has also availed other financial facilities and stood borrower/co-borrower/guarantor in those financial facilities. The total limit of sanctioned loan to the complainant in which he stood as Borrower/Co-Borrower/Guarantor is Rs. 1,15,00,000/- out of which Rs. 80 lacs was sanctioned to M/s Hukam Chand Rajesh Kumar, Rs. 15 lacs to the complainant and Rs. 20 lacs to Rajesh Kumar. It is submitted that the complainant signed the respective agreement time to time in this regard. Copies of all the documents executed by the complainant was given to the complainant at the time of execution thereof. The complainant used the financial facility for commercial activities so the present complaint is out of the ambit of the Consumer Protection Act. The present disputes is civil dispute and does not under the Consumer Protection Act as the same requires detailed inquiry by leading documentary and oral evidence.
5. On merits, it is admitted that the complainant availed financial facility from the opposite party. The alleged debit amount of Rs. 16,854/- on 31.7.2013, Rs. 6,741/- on 30.8.2014, Rs. 17,100/- on 24.6.2015, Rs. 16,911.90 on 1.8.2016 is strictly in accordance with the loan agreement on account of PF and Renewal fees. The alleged debit of Rs. 34,500/- on 9.8.2016 is on account of foreclosure charged in accordance with loan agreement. All the debited amount was strictly in acordance with loan agreement entered into by the complainant at the time of agreement. The opposite party never refused to issue the NOC after closure of the loan account and same has been issued to the complainant whereupon the loan was taken over by some other financial institute. However, it was specifically told to the complainant that PDC if any given by the complainant at the time of availing loan facility, will be retained by the opposite party as a matter of policy of the opposite party and will be deemed to be redundant for all purposes and will not be used for any purpose in future. Copies of all the documents, agreements executed by the complainant at the time of availing loan facility were given to her at the time of execution itself. Moreover, the original papers kept as security as hypothecation/mortgage to secure the loan amount have also been released in favour of the complainant at the time of issuing NOC. There is no deficiency in service and unfair trade practice on the part of the opposite party. Lastly, the opposite party prayed for the dismissal of the present complaint with costs.
6. To prove his case the complainant tendered in evidence hiw own affidavit Ex.C-1, copy of account statement w.e.f. 17.8.2013 to 7.5.2018 Ex.C-2 and closed their evidence.
7. To rebut the case of the complainant the opposite party tendered in evidence affidavit of Sunny Madaan Authorized Attorney Ex.OP-1 alongwith documents Ex.OP-2 to Ex.OP-32 and closed the evidence.
8. We have heard the learned counsel for the parties and gone through the record on the file.
9. Before going into the merits of the present complaint firstly we meet with the main objection of the opposite parties that the complainant is involved in commercial activities and loan was availed for working capital for the purpose of said business so the complainant is not a consumer and present complaint is liable to be dismissed.
10. As per Section 2 (1) (d) of the Consumer Protection Act, 1986 the definition of consumer is as under.-
“(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 or 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).
As per this definition if any person obtains such goods for resale or for any commercial purpose or avails the services for any commercial purpose then he is not a consumer under the Consumer Protection Act, 1986.
11. The complainant mentioned in the complaint that the complainant is the sole proprietor firm and Ms. Neetu Sadana is its Proprietor and doing the business for earning his livelihood by way of self employment but she has not mentioned that how much money is involved and how many workers are working in the said business. Further, the opposite parties taken the objection that the complainant involved in the business of clothes and other dress materials which means she is involved in the sale of clothes and other dress material which is a commercial purpose.
12. Further, the commercial purpose means i.e. Commercial denotes pertaining to commerce it means connected with or engaged in commerce; mercantile, having as the main aim and the word commerce means financial transactions especially buying and selling of merchandise on a large scale. In the present case we observed that the complainant is a firm and availed Cash Credit Limit, loans and stood guarantor in loans of crores of rupees which means that the complainant firm is doing the business in crores of rupees and their main aim is to generate profit, so it is proved on the file that the complainant firm is doing the business for commercial purpose.
13. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Union Bank of India and another Versus Learning Spiral Private Limited and others reported in III (2018) CPJ-514 (NC) held as under.-
“Consumer Protection Act, 1986- Sections 2(1)(d), 21(b)- Consumer- Current Account- Business purpose- Illegal encashment of cheque- Alleged deficiency in service- District Forum allowed complaint- State Commission allowed appeal-Hence revision- Complainant is a company registered under provision of Companies Act- Complainant had opened a current account with petitioner Bank- Cheque which petitioner bank had honoured was indeed in favour of a business associate/supplier of complainant- Cheque in question was issued by complainant in course of business- Complainant cannot be said to be a consumer within meaning of Consumer Protection Act, as it had hired/ availed services of petitioner bank for commercial purpose.”
14. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Ranjana Dugar Versus ICICI Bank Limited decided on 15.3.2018 reported in 2018 (4) CLT-73 held as under.-
“Consumer Protection Act, 1986 Section 2(1) (d) Consumer- Commercial purpose- Services of the respondent/bank in the form of security current account were availed by the petitioner for commercial purpose i.e. sale and purchase of shares and securities- In view of exception carved out in the definition itself, the petitioner cannot be termed as 'consumer' for the purpose of Consumer Protection Act.”
15. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Miracle Coro Plast Private Limited Versus United Bank of India and others reported in II (2018) CPJ-29 (NC) held as under.-
“Consumer Protection Act, 1986- Sections 2(1)(d), 21(a) (ii)- Consumer- Term Loan and Credit limit from bank- Commercial purpose- Complainant opted for change of interest- Bank overcharged- Alleged deficiency in service- Complainant availed services of bank- Loan taken for business and also the cash credit limit- This is a case of hiring/availing of services of bank for commercial purpose- Complainant had no locus standi to file consumer complaint- Complainant is not consumer.”
In all these citations the Hon'ble National Consumer Disputes Redressal Commission, New Delhi held that the complainant availed term loan from the opposite parties for the business purpose or having current account for commercial purpose is not a consumer of the opposite parties under the Consumer Protection Act, 1986 as the complainant has been availing the services of the bank for commercial purpose. In the present case also the complainant has current account with the opposite parties and availing Cash Credit Limit for business purpose and alleged that the bank overcharged interest rate, so in the present case also the complainant availed the services of the bank for commercial purpose, so the complainant is not a consumer of the opposite parties and she has no locus standi to file the present complaint.
16. In view of the above discussion and the law laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi mentioned above, as the complainant is not a consumer within the definition of Consumer Protection Act, 1986, accordingly the present complaint is dismissed being not maintainable before this Forum now Commission. However, no order as to costs or compensation. Copy of the order will be supplied to the parties by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
ANNOUNCED IN THE OPEN COMMISSION:
15th Day of September 2022
(Ashish Kumar Grover)
President
(Navdeep Kumar Garg)
Member
