BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 340/2002 Filed on 05/08/2002 Dated: 15..10..2009 Complainant: S. Sulfikar, Varukadu House, Kollamkavu, Pazhakutty-P.O., Nedumangadu. (By Adv. A.S. Sujithkumar)
Opposite parties: M/s. Cholamandalam Investments and finance co.Ltd., TIAM House, 28 Rajasalai, Chennai – 600 001. Branch Manager, M/s. Cholamandalam Investment and Finance Co. Ltd., Ambujavilasom Road, Thiruvananthapuram – 695 001. (By Adv. K.K. Rajeev) M/s. Grand Motors Sales Corporation, Karamana, Thiruvananthapuram.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31..08..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..09..2009, the Forum on 15..10..2009 delivered the following: ORDER
SMT. BEENA KUMARI. A., MEMBER:
Brief facts of the case are as follows:
The complainant in this case is a business man. In the month of July 2001 the complainant had booked for an Aluminium bodied Container Van (Mitsubishi Eicher) for the purpose of supply and distribution of the said provisional goods and grocery as it was Onam Festival season from the 3rd opposite party. At the time of booking the vehicle, the sales executive of the 3rd opposite party promised to the complainant that the vehicle would be delivered to the complainant on or before 6/8/2001. The 3rd opposite party arranged for a vehicle loan from the 2nd opposite party for purchasing the vehicle having their registered office at Chennai. As per the direction of the 2nd opposite party, the complainant submitted all necessary documents including 36 signed cheque leaves and the balance sheet for the year ending 31st March 2000 and 2001. But, quite surprisingly, the 3rd opposite party did not deliver the said Van to the complainant as promised even after the lapse of more than one month. Due to the non-delivery of the vehicle, the complainant could not supply the goods and grocery during the festival season as expected and thereby complainant had to suffer heavy loss and damage. As the vehicle was not delivered to the complainant as promised on 19/12/2001, the complainant issued a letter to the 3rd opposite party stating that he is cancelling the agreement with the 3rd opposite party for the fact that they had committed breach of contract and had failed to deliver the vehicle even after the promised period. Immediately, complainant informed the 2nd opposite party, that the 3rd opposite party has failed to execute the promise, he does not require the loan and so the document and cheque leaves submitted by him shall be returned to the complainant. After the repudiation of the said contract the complainant demanded to the 2nd opposite party to return the cheque leaves and other documents submitted at the time of loan application. Even after complainant demanded the cheque leaves and documents, the 1st opposite party presented the cheque leaves without sanctioning the loan to the complainant and issued notice to the complainant for the reason of non-payment of cheques. Lastly on 24/6/2002 the 1st opposite party issued notice to the complainant demanding money as per the cheque together with Rs.500/- collection charge. The act of the 1st opposite party complainant surprised and shocked and has also affected the reputation of the complainant in the business circle as well as in the Bank as the cheques bounced for no fault of the complainant. The opposite parties neither arranged the loan to the complainant nor delivered the vehicle in the proper time. The cancellation of booking of the vehicle was very well aware to the opposite parties even before they started presenting the cheques for collection. But even then in order to extract money from the complainant the 1st opposite party is still continuing the presentation of the said cheques of the complainant, eventhough there is no legally enforcible debt on the part of the complainant. On 16/3/2002 the complainant issued a lawyer's notice to the opposite parties calling upon them to return the cheques and documents which the complainant submitted at the time of application of the loan. Even after the acceptance of the notice no reply was send by the opposite parties, the cheques are still being presented by the 1st opposite party. The acts of the opposite parties complainant incurred huge loss and has lost his reputation in the business circle. On 24/6/2002 the 1st opposite party issued notice to the complainant. Hence this complaint.
2. 1st and 2nd opposite parties M/s. Cholamandalam Investers and Finance Company filed their version. 2nd and 3rd opposite parties stated that as per the request of the complainant they sanctioned loan for an amount of Rs. 5 lakhs and accordingly the complainant agreed to pay back the principal amount and interest at 36 monthly installments at Rs.17,756/- and issued post dated cheques for the purpose. Thereafter on request of the complainant the 1st and 2nd opposite parties delivered the said amount to the 3rd opposite party to purchase the vehicle. Thereafter as per the terms of the contract and repayment schedule, the 1st and 2nd opposite parties used to present the cheque for encashment and so far 12 cheques were returned unpaid. The opposite parties submitted that neither 3rd opposite party nor the complainant informed the cancellation of the agreement between them to the 1st and 2nd opposite parties. The complainant never informed the matter of non-delivery of the vehicle and that he does not require the loan to the 1st and 2nd opposite parties. The opposite parties also submitted that the complainant never demanded them to return the cheques or any documents submitted at the time of loan application. The complainant is duty bound to inform the original state of affairs to the 1st and 2nd opposite parties they have rendered huge amount by way of loan transaction and instead of it the complainant resorted hide and seek game. The 1st & 2nd opposite parties acted only in accordance with the agreement which they are bound to do. The cheques were presented only to collect amount due as per the repayment schedule of the agreement entered into by the complainant with the company and neither the company is a party to the dispute or differences of opinion between the complainant and 3rd opposite party nor was the company given any information on the dispute. The agreement between the complainant and the 1st & 2nd opposite parties are only restricted with the loan transaction for the purchase of the vehicle and these opposite parties are not having any role in the delivery and allied matters of the vehicle. The 1st & 2nd opposite parties presented the cheque since they are entitled to do so and since the consideration is already passed.. No damage or mental agony has been caused to the complainant and he is not entitled to get any compensation.
3. 3rd opposite party M/s. Grand Motors Sales Corporation remained ex-parte.
4.In this case the complainant has filed affidavit in lieu of evidence and he has produced 6 documents. The documents were marked as Exts. P1 to P6.
5. Points that would arise for consideration are: Whether the complainant is a consumer or not? Reliefs and costs?
6. Points (i) and (ii) : The 1st point that would arise for consideration is whether the complainant in this case is a consumer or not. As per Section 2(d)(i) & (ii) of the Consumer Protection Act 1986 a consumer means any person who - 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 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 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;
Explanation:- For the purposes 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 purposes of earning his livelihood by means of self-employment. 6. In this case the complainant himself admitted in the complaint that he is a well known business man in his locality having whole sale supply of provisional goods and grocery and also he admitted that he booked the Mitsubishi Eicher Van for the purpose of supply and distribution of goods and grocery ie. for his business purpose. Nowhere in the pleadings or evidences he stated that he run the business for the purpose of earning his livelihood by means of self employment. And more over in this case the complainant has not purchased any goods or any service for consideration from the opposite parties. As per Sec 2(d)(i) and Sec 2(d)(ii) of Consumer Protection Act the complainant is not a consumer. Hence there is no need for considering the other aspects. In this case we are of the view that the complainant is not a consumer and hence this complaint is dismissed as not maintainable.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of October, 2009. BEENA KUMARI MEMBER.
G.SIVAPRASAD, PRESIDENT
S.K. SREELA, MEMBER. ad. O.P.No.340/2002 APPENDIX I. Complainant's witness : PW1 : Sulfikar II. Complainant's documents: P1 : Letter No.602 dated 6/8/2001 issued by 1st opposite party to the complainant. (a) : " dated 31/1/2002 " (b) : " dated 26/9/2001 " (c) : " dated 2/3/2002 " (d) : " dated 30/12/2001 " (e) : " dated 24/6/2002 " (f) : " dated 13/3/2002 "
P2 : Photocopy of letter dated 14/9/2001 issued to the 2nd opposite party by the complainant. P3 : Copy of letter to the 3rd opposite party by complainant. P4 : Copy of letter to the 3rd opposite party by the complainant. P5 : Copy of Balance sheet of Kollam Stores, Nedumangad as on 31/3/2001. P6 : Copy of advocate notice dated 16/3/2002. P6(a) : Postal receipt dated 18/3/2002.
III. Opposite parties' witness: NIL
IV. Opposite parties' documents: NIL
PRESIDENT ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 340/2002 Filed on 05/08/2002 Dated: 15..10..2009 Complainant: S. Sulfikar, Varukadu House, Kollamkavu, Pazhakutty-P.O., Nedumangadu. (By Adv. A.S. Sujithkumar)
Opposite parties: M/s. Cholamandalam Investments and finance co.Ltd., TIAM House, 28 Rajasalai, Chennai – 600 001. Branch Manager, M/s. Cholamandalam Investment and Finance Co. Ltd., Ambujavilasom Road, Thiruvananthapuram – 695 001. (By Adv. K.K. Rajeev) M/s. Grand Motors Sales Corporation, Karamana, Thiruvananthapuram.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 31..08..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..09..2009, the Forum on 15..10..2009 delivered the following: ORDER
SMT. BEENA KUMARI. A., MEMBER:
Brief facts of the case are as follows:
The complainant in this case is a business man. In the month of July 2001 the complainant had booked for an Aluminium bodied Container Van (Mitsubishi Eicher) for the purpose of supply and distribution of the said provisional goods and grocery as it was Onam Festival season from the 3rd opposite party. At the time of booking the vehicle, the sales executive of the 3rd opposite party promised to the complainant that the vehicle would be delivered to the complainant on or before 6/8/2001. The 3rd opposite party arranged for a vehicle loan from the 2nd opposite party for purchasing the vehicle having their registered office at Chennai. As per the direction of the 2nd opposite party, the complainant submitted all necessary documents including 36 signed cheque leaves and the balance sheet for the year ending 31st March 2000 and 2001. But, quite surprisingly, the 3rd opposite party did not deliver the said Van to the complainant as promised even after the lapse of more than one month. Due to the non-delivery of the vehicle, the complainant could not supply the goods and grocery during the festival season as expected and thereby complainant had to suffer heavy loss and damage. As the vehicle was not delivered to the complainant as promised on 19/12/2001, the complainant issued a letter to the 3rd opposite party stating that he is cancelling the agreement with the 3rd opposite party for the fact that they had committed breach of contract and had failed to deliver the vehicle even after the promised period. Immediately, complainant informed the 2nd opposite party, that the 3rd opposite party has failed to execute the promise, he does not require the loan and so the document and cheque leaves submitted by him shall be returned to the complainant. After the repudiation of the said contract the complainant demanded to the 2nd opposite party to return the cheque leaves and other documents submitted at the time of loan application. Even after complainant demanded the cheque leaves and documents, the 1st opposite party presented the cheque leaves without sanctioning the loan to the complainant and issued notice to the complainant for the reason of non-payment of cheques. Lastly on 24/6/2002 the 1st opposite party issued notice to the complainant demanding money as per the cheque together with Rs.500/- collection charge. The act of the 1st opposite party complainant surprised and shocked and has also affected the reputation of the complainant in the business circle as well as in the Bank as the cheques bounced for no fault of the complainant. The opposite parties neither arranged the loan to the complainant nor delivered the vehicle in the proper time. The cancellation of booking of the vehicle was very well aware to the opposite parties even before they started presenting the cheques for collection. But even then in order to extract money from the complainant the 1st opposite party is still continuing the presentation of the said cheques of the complainant, eventhough there is no legally enforcible debt on the part of the complainant. On 16/3/2002 the complainant issued a lawyer's notice to the opposite parties calling upon them to return the cheques and documents which the complainant submitted at the time of application of the loan. Even after the acceptance of the notice no reply was send by the opposite parties, the cheques are still being presented by the 1st opposite party. The acts of the opposite parties complainant incurred huge loss and has lost his reputation in the business circle. On 24/6/2002 the 1st opposite party issued notice to the complainant. Hence this complaint.
2. 1st and 2nd opposite parties M/s. Cholamandalam Investers and Finance Company filed their version. 2nd and 3rd opposite parties stated that as per the request of the complainant they sanctioned loan for an amount of Rs. 5 lakhs and accordingly the complainant agreed to pay back the principal amount and interest at 36 monthly installments at Rs.17,756/- and issued post dated cheques for the purpose. Thereafter on request of the complainant the 1st and 2nd opposite parties delivered the said amount to the 3rd opposite party to purchase the vehicle. Thereafter as per the terms of the contract and repayment schedule, the 1st and 2nd opposite parties used to present the cheque for encashment and so far 12 cheques were returned unpaid. The opposite parties submitted that neither 3rd opposite party nor the complainant informed the cancellation of the agreement between them to the 1st and 2nd opposite parties. The complainant never informed the matter of non-delivery of the vehicle and that he does not require the loan to the 1st and 2nd opposite parties. The opposite parties also submitted that the complainant never demanded them to return the cheques or any documents submitted at the time of loan application. The complainant is duty bound to inform the original state of affairs to the 1st and 2nd opposite parties they have rendered huge amount by way of loan transaction and instead of it the complainant resorted hide and seek game. The 1st & 2nd opposite parties acted only in accordance with the agreement which they are bound to do. The cheques were presented only to collect amount due as per the repayment schedule of the agreement entered into by the complainant with the company and neither the company is a party to the dispute or differences of opinion between the complainant and 3rd opposite party nor was the company given any information on the dispute. The agreement between the complainant and the 1st & 2nd opposite parties are only restricted with the loan transaction for the purchase of the vehicle and these opposite parties are not having any role in the delivery and allied matters of the vehicle. The 1st & 2nd opposite parties presented the cheque since they are entitled to do so and since the consideration is already passed.. No damage or mental agony has been caused to the complainant and he is not entitled to get any compensation.
3. 3rd opposite party M/s. Grand Motors Sales Corporation remained ex-parte.
4.In this case the complainant has filed affidavit in lieu of evidence and he has produced 6 documents. The documents were marked as Exts. P1 to P6.
5. Points that would arise for consideration are: Whether the complainant is a consumer or not? Reliefs and costs?
6. Points (i) and (ii) : The 1st point that would arise for consideration is whether the complainant in this case is a consumer or not. As per Section 2(d)(i) & (ii) of the Consumer Protection Act 1986 a consumer means any person who - 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 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 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;
Explanation:- For the purposes 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 purposes of earning his livelihood by means of self-employment. 6. In this case the complainant himself admitted in the complaint that he is a well known business man in his locality having whole sale supply of provisional goods and grocery and also he admitted that he booked the Mitsubishi Eicher Van for the purpose of supply and distribution of goods and grocery ie. for his business purpose. Nowhere in the pleadings or evidences he stated that he run the business for the purpose of earning his livelihood by means of self employment. And more over in this case the complainant has not purchased any goods or any service for consideration from the opposite parties. As per Sec 2(d)(i) and Sec 2(d)(ii) of Consumer Protection Act the complainant is not a consumer. Hence there is no need for considering the other aspects. In this case we are of the view that the complainant is not a consumer and hence this complaint is dismissed as not maintainable.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of October, 2009. BEENA KUMARI MEMBER.
G.SIVAPRASAD, PRESIDENT
S.K. SREELA, MEMBER. ad. O.P.No.340/2002 APPENDIX I. Complainant's witness : PW1 : Sulfikar II. Complainant's documents: P1 : Letter No.602 dated 6/8/2001 issued by 1st opposite party to the complainant. (a) : " dated 31/1/2002 " (b) : " dated 26/9/2001 " (c) : " dated 2/3/2002 " (d) : " dated 30/12/2001 " (e) : " dated 24/6/2002 " (f) : " dated 13/3/2002 "
P2 : Photocopy of letter dated 14/9/2001 issued to the 2nd opposite party by the complainant. P3 : Copy of letter to the 3rd opposite party by complainant. P4 : Copy of letter to the 3rd opposite party by the complainant. P5 : Copy of Balance sheet of Kollam Stores, Nedumangad as on 31/3/2001. P6 : Copy of advocate notice dated 16/3/2002. P6(a) : Postal receipt dated 18/3/2002.
III. Opposite parties' witness: NIL
IV. Opposite parties' documents: NIL
PRESIDENT
......................President
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
