Date of filing: 24.07.2018 Date of disposal: 20.09.2018
Applicant: Manappuram Finance Ltd., Durgapur Branch, Represented by its Branch Manager, having its office at 40/29 Nachan Road, Opposite of TN Institution, Benachity, Durgapur, District: Paschim Burdwan, PIN – 713 213.
Opposite Party: Rita Saha, W/o. Sumit Saha, resident of 7/8 HIG Housing Complex, Doctor Zakir Hussain Avenue, HUDCO, Bidhannagar, Durgapur, District: Paschim Burdwan, PIN – 713 212.
Present: Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Ms. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Applicant: Ld. Advocate, Chayan Bhattacharyay.
Appeared for the Opposite Party: Ld. Advocate, Suvro Chakraborty.
Order No. 08, Dated: 20.09.2018
This order is arising out of the Misc. Application being No. 50/2018 filed by the Applicant - OP in the C. C. No. 85/2018 with a prayer to dismiss the case as it is not maintainable as the complainant is not a consumer as per provisions of C. P. Act.
Applicant - OP stated in the petition that this case is not maintainabe as the complainant cannot be considered as consumer under Section 2 (1) (d) of the C. P. Act and filed this case on false and frivolous grounds etc. He admits that the complainant pledged gold and took loan from OP as he submits documents in this regard. Unfortunately the gold ornaments were stolen away in a burglary on 05.06.2017 and FIR was lodged at Durgapur Police Station and he files documents and the matter was informed to the complainant. OP/ applicant also by letter dated 14.06.2017 informed that they will return the gold with same weight after clearing outstanding amount of loan as per rules and regulations of their loan transactions. But complainant with some ulterior motive and to harass this OP filed this case etc. For this reason the applicant/OP filed this petition for dismissal of the complaint on the maintainability ground. The OP cited reference of 1989 0 Supreme (Raj) 503 that the complaint cannot be entertained in the Consumer Forum as it pertaining to transactions of borrowings from Banks (financial Institutions) and Civil Courts are the proper forum for redressing the grievance. There is no deficiency in service etc. the OP/applicant also cited the decision of Hon’ble NCRDC, New Delhi in 1997 2 CPR (NC) 237 that in case of breach of term on the part of the Bank the relationship of creditor and debtor so far as pledged shares were concerned and remedy of complainant for an improper sale of pledged shares was for recovery of damages by way of civil suit. The OP also referred the judgement of Hon’ble SCDRC, Kerala reported in 2001 1 CPC 401 that pledging of gold ornaments and securing loan, that there is a relationship of creditor and debtor so far as pledged materials were concerned and question of hiring of service would not arise in such an eventuality and remedy of the pawner for an improper sale of pledged property is for recovery of damages by a civil suit.
In reply the ld. Counsel of complainant submits that the case is very much maintainable before this Forum and cited the decision of Hon’ble Apex Court as reported in 2000 (3) SCR 587submtis that prima facie it appears that the OP has failed to honour its commitments resulting in loss to the appellant and alleged default on the part of the OP-
Financial Company can be termed as deficiency in service. ‘Service’ has been defined Section 2 (1) (o) of the Act and ‘deficiency’ in clause (g) thereof.
(g) “deficiency” means ‘any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service’.
(o) “service” means ‘service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service’.
Hon’ble Apex Court viewed that such argument that, the appellant is not a consumer or that the Bank is not rendering service, is an argument in desperation. Bank is rendering service by providing overdraft facilities to a customer which is not without consideration.
In this case the complainant pledged his gold for getting loan facilities which is agreed to by the OP-Financial Company which is certainly part of the ‘service’ connected with the grant of loan facilities. Appellant as a ‘consumer’ was hiring the ‘service’ of the OP for ‘consideration’ by way of payment of interest for the loan facilities received by him by pledging gold and it is not disputed. Therefore, this Forum also rejects the argument of the OP –Financial Company that the complainant is not a consumer or that the OP – Financial Company is not providing any service to the complainant. Therefore, we find that this case is very much maintainable in this Forum in view of the judgement passed by the Hon’ble Apex Court in this judgement 2000 (3) SCR 587.
Hence, it is
O r d e r e d
that the Misc. Application being No. 50/2018 be and the same is dismissed on contest. There is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Nivedita Ghosh)
Member
D.C.D.R.F., Burdwan
