Tamil Nadu

North Chennai

CC/219/2018

M/S.Arun Service, Partner,A.R.Meyyappan - Complainant(s)

Versus

Manager, HDFC BANK Ltd. - Opp.Party(s)

Yurandrakumar

30 Jan 2023

ORDER

Complaint presented on  :31.12.2009 Date of disposal               :30.01.2023

         

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                  TMT. KAVITHA KANNAN, M.E.,                          : MEMBER-I

                                                      

C.C. No.219/2018

 

DATED THIS MONDAY THE 30^TH  DAY OF JANUARY 2023

 

M/s.Arun Services,

Partner AR.Meyyappan,

#.2/29 Cenotaph road, 1^st street,

Teynampet, Chennai-18.

                                                                                                 .. Complainant.                                                                          ..Vs..

 

Manager,

HDFC Bank Ltd.,

3^rd Floor #:56 G.N.Chetty road,

T.Nagar, Chennai-17.

                                                                       ..  Opposite party..

 

 Counsel for the complainant                       : M/s.V.Yurendrakumar.

 Counsel for Opposite party                      : M/s.T.K.M.Sai Krishnan &

         N.Premalatha  

 

 

ORDER

THIRU. G.VINOBHA, M.A., B.L.        : PRESIDENT 

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to forthwith issue full and complete NOC and to pay Rs.100000/- for the deficiency of service in not giving NOC despite completion of payment on September 2007 itself and to pay Rs.100000/-for mental agony and deficiency of service and to pay Rs.7500/- as cost of this complaint.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.15/2010.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.219 /2018.

1.THE COMPLAINT IN BRIEF:

          The complainant submitted that the complainant had taken vehicle loan as per agreement No.1914514 and 1914463 from opposite party’s bank Bajaj CG 1000 2 nos.  The complainant was regular in payment of EMI for the vehicles completed full payment in September 2007 itself.  On completion of loan as aforesaid the complainant was unable to get the much needed NOC from opposite party despite regular follow ups from their end who were wholly evasive.  Only on 19.05.2009 the much awaited NOC that too for 3 months was given complainant went through a torrid time unable to deal with vehicles till then. The complainant even after complete payment of loans as aforesaid got the NOC that too for 3 months only after an inordinate delay.  The complainant states that such delay had largely diminished the vehicle value.  Further the complainant was saddled with a huge monetary loss due to opposite party’s lackadaisical attitude in giving NOC only 19.05.2009 that too for 3 months when the loan was fully paid in September 2007. The complainant sent legal notice to opposite party on 29.06.2008 but failed to get a reply. The acts of the opposite party amounts to deficiency of service. Hence this complaint. 

2.WRITTEN VERSION OF  OPPOSITE PARTY IN BRIEF:

The opposite party deny the averments and allegations mentioned in the complainant as false and frivolous except those that are specifically admitted and put the complainant to strict proof of the same. The opposite party submitted that the complainant had received a loan from the opposite party for purchasing vehicles, but it is not accepted that the complainant has repaid the entire money in fully by the month of September 2007 itself.  The complainant has not preferred to establish the said fact through any documentary evidence other than the communications sent by him to the opposite party. Further the complainant was never denied with No-Objection Certificate as claimed by him.  Further the duty of the opposite party also stands complied because they have actually issued the no objection certificate to the complainant and the document through which the no objection certificate was issued is also filed by the complainant.  The complainant has also not raised any objections at that point of time for issue of a no objection certificate which was valid for 3 months and he has happily accepted the same at the point of time and now he is raising a false allegation against the opposite party. Hence the complaint filed by the complainant is liable to be dismissed against the opposite party.

3. POINTS FOR CONSIDERATION:

1. Whether the complainant is a consumer?

2. Whether the opposite party caused any deficiency in service  as alleged in the complaint?

3. Whether the complainant is entitled to the reliefs prayed in the complaint.

If, so to what extent?

Complainant had filed proof affidavit  and documents Ex.A1 to A4 were marked on the complainant side.  The Opposite party filed proof affidavit and documents Ex.B1 to B4  were marked on his side.

4. Point No.1 and 2:-

          The complainant purchased two Bajaj Autos by executing two vehicle loan agreement to the opposite party on 24.10.2005 and said loan agreement is marked as Ex.B1 and the promissory note executed for the purpose of loan is marked as Ex.B2.  The loan agreement numbers are 1914463 and 1914514.  The loan amount is Rs.190000/- under each agreement and repayable in 24 EMIs.  The sanctioning of loan to the complainant for purchasing the vehicle is not disputed by the opposite party but according to the complainant he was regular in payment of EMI for the vehicles and paid entire payment in September 2007 itself but inspite of regular follow up he was unable to get the NOC from the opposite party and finally got it on 19.05.2009 that too only for three months and hence he was unable to deal with the vehicle till then and further contended that such delay had diminished the vehicle value due to which he was put to monetary loss and therefore contended deficiency in service and prayed to issue full and complete NOC and to pay compensation for deficiency in service.

5. But on the otherhand the opposite party contended that the complainant has not filed any documentary evidence to proof the repayment of entire loan and further contended that they have already issued NOC valid for three months which was accepted by the complainant and later on now he is raising false allegation without any valid proof and further contended that regarding his intention to sell the vehicle and monetary loss in the value of the vehicle there is no proof and there is no averment in the first communication sent by him on 14.05.2009 and therefore contended that if he really required additional NOC he should have made such claim at the time itself but the complaint is filed with a motive to get unlawful enrichment and alleged that there is no deficiency in service on their part.

6. As per Ex.A3 as well as Ex.B1 and B2 it is found that the loan was advanced by the opposite party for purchasing two three wheeler auto to the complainant and in the loan agreement the complainant has signed as main borrower/partner of Arun services which is a partnership firm and also signed by his wife Vishalatchi as co-borrower/guarantor, there is no averment in the complaint that the said vehicles were purchased for the own use of the complainant or his wife and further there is no averment in the complaint that the vehicle was used for earning livelihood by self employment hence the opposite party contended that during the course of argument that the vehicle was purchased for commercial purpose and hence the complainant will not come under the definition of the consumer.  Further contended that though there is no such plea raised in the written version since it is a legal plea it can be raised at any time during the course of the proceedings and the opposite party also relied upon decision reported in Renuka Poultry farm Vs. State Bank of India NCDRC dated 12.10.2020  and contended that the complainant being a partnership firm not an individual and there is  no averment in the complaint that the partners were earning livelihood by way of self employment in the business for which the loan was taken by the complainant firm from the bank and also relied on a decision reported in  Laxmi Engineering works Vs. PSG Industrial Institute (1995) 3 SCC 583 and also relied upon a decision reported in R.P. No.3221/2012, 3802,3803/2012 NCDRC dated 26.06.2020 wherein also the findings rendered in Laxmi Engineering works Vs. PSG Industrial Institute was again re-emphasised and contended that whether a transaction is for a commercial purpose will depend upon facts of each case and the dominant purpose behind the purchase of goods or service has to be looked into to findout whether the purchase or service is for earning livelihood by self employment and hence contended that since two vehicles which were autos used for commercial purpose and that too purchased by firm represented by its partner and therefore the opposite party contended that the purchase of vehicle is for only commercial purpose and hence the complainant is not a consumer.

7. But on the other hand the complainant counsel by relying upon a decision reported in II(2007) CPJ 25 (SC) contended that by virtue of the definition the person who obtains the goods for resale or for any commercial purpose is excluded but the services hired for consideration even for commercial purpose or not excluded and also relied upon decision reported in CPJ 1 2022 (IV) SC and contended that a person who avails any service from the bank will fall under the definition of consumer and therefore contended that the complainant is a consumer.  But from the documents filed by both the parties it is found that the purchase of vehicle by obtaining loan from the bank by the complainant firm by its partner in the absence of specific averment in the complaint that it is for earning livelihood by self employment has to be treated only as a loan for commercial purpose and though there is no averment in the written version as per the view rendered by the apex court the question of law being the complainant not a consumer can be raised at any stage of proceedings as contended by the opposite party during the course of argument and  hence it is found that the complainant will not come under the purview of the definition of ‘consumer’. Point No. 1 is answered accordingly.

8. It is found from Ex.A1 that the complainant has sent a letter to the opposite party on 22.10.2005 stating that he has enclosed 23 cheques towards loan repayment for two vehicles but the exact details of amount paid under those cheques towards repayment is not found in Ex.A1 or there is no document filed by the complainant to prove that entire loan amount was paid by him in September 2007 itself, it is found from Ex.A3 that on 19.05.2009 itself the opposite party has issued NOC valid for three months in respect of two vehicles by terminating the loan agreements which was accepted by the complainant and it seems that the complainant has not raised any objection at that time and therefore the complainant is estopped from questioning the same in the present complaint, further in the legal notice which is marked as Ex.A4 there is no averment with regard to his intention to sell the vehicles and regarding the monetary loss sustained by him due to diminishing of the value of the vehicle due to delay caused  by the opposite party  and he has sought for only for compensation in the legal notice.  It is found from Ex.B3 that the complainant has obtained another vehicle loan from the opposite party on the same date on 24.10.2005 for purchasing a TATA 407 vehicle for which he has executed another loan agreement to the opposite party which was suppressed by the complainant in the complaint. Therefore on merits also the complainant failed to established the alleged deficiency in service on the part of the opposite party as alleged in the complaint. Point No.2 is answered accordingly.

9. POINT NO.3:-

Based on findings given to Point No.1 and 2 the complainant failed to prove that there is deficiency in service on the part of the opposite party. Hence the complainant is not entitled to get any of the reliefs claimed in the complaint. Point No.3 is answered accordingly.

          In the result the Complaint is dismissed. No costs.

Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 30^th   day of January 2023.

 

MEMBER – I                                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	22.10.2005	Complainant’s letter.
Ex.A2	14.05.2009	Complainant’s letter.
Ex.A3	19.05.2009	Opposite part’s letter.
Ex.A4	29.06.2009	Legal notice with postal ack due.

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1	24.10.2005	Agreement for Rs.190000/-
Ex.B2	24.10.2005	Promissory note for Rs.190000/-
Ex.B3	24.10.2005	Agreement for Rs.460000/-
Ex.B4	24.10.2005	Demand promissory note for Rs.460000/-.

 

MEMBER – I                                                                               PRESIDENT