SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) alleging a “deficiency-in-service” against the Opp. Parties, who are Authorities of Bajaj Finserv Limited located at different places praying for compensation of Rs.80,000/- along with cost of the litigation.
2. The factual matrix of this case is that the complainant had incurred a personal loan from the Ops and observing all formalities, on 20.7.2919, OP No.1 sanctioned a loan of Rs.1,83,917/- in his favour which has credited to his SBI Account. OP No.1 used to receive EMI of Rs.8,711/- from the complainant’s bank account starting from 2.9.2019. In this way, the OP No.1 received 14 instalments amounting to Rs.1,21,954/-. During the rigorous period of Covid-19 and for the proclamation of lock down and shut down, the complainant could not able to make payment from April, 2020. Taking such advantage, the OP No.1 and his agents threatened for payment at any cost. Thereafter, OP No.1 by misusing the post-dated cheques, which were given by the complainant at the time of sanction of loan, used to withdraw amount from his account. The above acts of the OP No.1 is nothing but whimsical, arbitrary and contrary to the guidelines of the Government of India issued at the time of Covid Pandemic. The complainant has tried his best for a settlement, but the Ops did not pay any heed to it. The OP No.2 & 3 are also jointly and severally liable for the acts and conduct since they did not listen the notice sent to them.
The cause of action for filing the case arose on 10.9.2020 when the OP No.1 withdraw money from the account of the complainant and found several bounce taken place at a time beyond his knowledge and acknowledgement. Hence, this case.
To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-
- Photocopy of Statement of Account.
- Photocopy of SBI pass book.
- Photocopy of Statement of account in respect of loan incurred and payment.
- Photocopy of Legal notice.
3. In the present case, Ops were made their appearance, but their written version was not accepted as the same was filed beyond the statutory period. But during course of hearing, to substantiate their case, Ops have relied on the following documents, which are placed in the record, as mentioned hereunder-
- Photocopy of fresh certificate of incorporation consequent upon change of name.
- Photocopy of certificate of incorporation.
- Photocopy of certificate of commencement of business.
- Photocopy of loan summary in respect of the complainant.
- Photocopy of personal loan application and its terms and conditions.
- Photocopy of letter of authority.
4. On perusal of the complaint petition and on hearing from the side of the complainant, it is seen that the complainant had incurred a personal loan from the Ops and observing all formalities, on 20.7.2919, OP No.1 sanctioned a loan of Rs.1,83,917/- in his favour which has credited to his SBI Account. OP No.1 used to receive EMI of Rs.8,711/- from the complainant’s bank account starting from 2.9.2019. In this way, the OP No.1 received 14 instalments amounting to Rs.1,21,954/-. During the rigorous period of Covid-19 and for the proclamation of lock down and shut down, the complainant could not able to make payment from April, 2020. Taking such advantage, the OP No.1 and his agents threatened for payment at any cost. Thereafter, OP No.1 by misusing the post-dated cheques, which were given by the complainant at the time of sanction of loan, used to withdraw amount from his account. The above acts of the OP No.1 is nothing but whimsical, arbitrary and contrary to the guidelines of the Government of India issued at the time of Covid Pandemic. The complainant has tried his best for a settlement, but the Ops did not pay any heed to it. The OP No.2 & 3 are also jointly and severally liable for the acts and conduct since they did not listen the notice sent to them.
5. On the other hand, learned counsel for the Ops submitted that the complainant does not fall within the definition of consumer and the relationship between the parties is that of borrower and lender. That apart, the complainant had incurred personal loan and not for his livelihood. Thus, the case of the complainant is not maintainable. .
6. On a careful scrutiny of the pleadings and the documents submitted on behalf of both the parties, this Commission is of the considered opinion that the complainant is a borrower and the Ops are the financier. The loan incurred by the complainant is a personal loan. One has to incur it for the purpose of business, not for his livelihood. In 2015(4) CPR-148 (N.C) in the case of Sunny & Others -vs.- Rajesh Tripathy, Hon’ble National C.D.R Commission, New Delhi have been pleased to observe that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National CDR Commission in III (2006) CPJ-247 in the case of Ram Deshlahara –v- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P.Act and the petitioner is thus, not a consumer. Moreover, OP has the right to recover his dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the loan agreement, it is the financier who has every right to collect payment and on the ground of non-payment of instalment has always been upheld to be a legal right of the financier. Besides, the plea of the complainant that his cheques got bounced, cannot be a cause for taking action against the Ops, rather, it is a cause of action for the Ops to initiate criminal proceeding against the complainant.
7. In the above facts and circumstances of the case and taking into consideration the rulings of the Hon’ble National CDR Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer, the complainant has no cause of action to file the case and the present case is not maintainable. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered: –
O R D E R
The complaint of the complainant be and the same is dismissed on contest against the Ops. In the facts and circumstances, no order as to cost.
Pronounced in the open court of this Commission, this the 30th day of April, 2024 under signature & seal of the commission.
