DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.71/20
Manoj Kumar Aggarwal
R/o C-44, 2nd Floor Chattarpur Enclave-II
New Delhi-110074. .…Complainant
VERSUS
M/s India Infroline Finance Limited
Ashoka Estate, 701, Barakhamba Road
Connaught Place, New Delhi-110001. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Kapil Choudhary along with Adv. Sonu Chaudhary for complainant.
Present: Adv. Aman Singh for OP.
ORDER
Date of Institution:05.03.2020
Date of Order :04.07.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking direction to OP to pay a compensation of Rs.5,00,000/- for deficiency in service and negligence, mental agony caused and cost of litigation.
- It is the case of the complainant that they had taken loan from the OP in the name of their proprietorship firm i.e. Aryan Enterprises in Feb. 2018. Complainant No.1 is the proprietor and complainant No. 2 is the guarantor.
- Complainant received a loan amount of Rs.8,86,800/- vide loan agreement HC4066 from the OP. It is further stated that complainant has been regular in making payments of the loan instalments and the loan was duly repaid by the complainant in the stipulated time period. It is further stated that loan account was without ECS mandate and the loan was being paid from the bank account of complainant No.1’s proprietorship.
- It is further stated that vide email dated 09.07.2019, complainant received information that the OP has imposed penal charges on the complainant’s account due to delay in the payment. In this regard, complainant has placed on record, in a tabular form, the amounts levied as penal charges on the complainant from 14.10.2018 till 14.06.2019.
- After receiving this email, complainant updated the OP that he has been regular and diligent in paying the instalments but OP has failed to take this into consideration and without checking the actual account status, vide email dated 13.07.2019 apprised the complainant that penal charges are against the late payments for the months of May to August 2019 and Jan.2019. Complainant duly responded to the said email reiterating that instalments were paid on time and that there is no delay.
- It is the case of the complainant that the OP time and again made false claims of delayed payment by the complainant which were duly answered by the complainants along with the statement of account that the payments were made through NEFT.
- It is further stated that vide email dated 19.08.2019 complainant was informed by the OP that the delay in the payments is because of the ECS mandate being not activated in the complainant’s account and thereby the instalments were paid to the OP through RTGS/NEFT. Despite repeated information being provided by the complainant, complainant received another letter dated 16.09.2019 whereby the OP recalled the loan facility advanced by them and alleged that the complainant has failed to make the requisite payment of Rs.57,601.40/- and that the offence amounts to cheating and criminal breach of trust. OP also initiated arbitration proceedings against the complainant vide notice dated 09.01.2019.
- It is further stated that the OP vide email dated 30.08.2019 responded to the queries of the complainant and agreed to his assertions that EMI were paid by the complainant regularly and that the ECS services were not active and the complainant was aware of it. OP refunded the charges and waived and refunded the extra amount of Rs.8,000/-. In the light of discrepancies and illegal harassment at the hands of OP, complainant filed a complaint before the RBI dated 24.09.2019. In the meanwhile, in the arbitration proceedings, sole arbitrator vide its order dated 23.11.2019 passed an interim order freezing the account of the complainant. The interim order was recalled vide order dated 16.12.2019.
- It is the case of the complainant that OP has been unprofessional and negligent in their acts and with a malafide intention froze the account of the complainant because of which complainant had to suffer mental agony and harassment.
- OP, in its reply has stated that complainants have suppressed substantial facts from the Commission. It is stated that complainant’s proprietorship firm has availed the credit facility of the OP for commercial purposes i.e. for printing equipments and complainant No.1 and 2 Co-borrower and guarantor hence complainants are not consumers.
- It is further stated by the OP that complainant No.1 and 2 signed the credit facility agreement and as per the terms and conditions agreed both the complainants had to pay the EMI before the stipulated date of agreement but they have failed to make timely payments of EMIs and also defaulted in making payment of EMIs in the months from October to December 2018 which was paid only after the OP had served the arbitration reference notice dated 09.01.2019 which is annexed at annexure F with the complaint.
- It is further stated that complainants were aware that late payment charges would be imposed for late payment and other irregularities. It is further stated that the complainants had assured OP to complete the payment of EMIs through ECS at the time of availing the credit facility but the ECS mandate for the account of M/s Aryan Enterprises was not active as the ECS mandate was less than the EMI amount. Further, there was delay in payments from Oct. –Dec.2018 and were received by the OP in Jan.2019 accordingly, OP has charged and sent a reminder to the complainants in answer to their email dated 19.08.2019 that ECS mandate for the account of M/s Aryan Enterprises was not active.
- It is further stated that the complainants never paid the late payment and other charges raised against delayed payments and other irregularities despite several reminders and follow up emails sent by the OP. It is further stated that Rs.8,000/- was waived as a ‘service gesture’ with a view to keep good customer relations but even after that, complainants did not pay any penal charges raised by the OP amounting to Rs.57,601.40/- and then OP issued letter dated 16.09.2019 (Annexure–E) recalling the loan facility and asking the complainants to pay total outstanding amount of Rs.4,38,861.22/-.
- After receiving the letter dated 16.09.2019, complainant filed frivolous complaint against the OP before RBI and Ombudsman. When the account of the complainant was frozen, complainants approached the OP and assured them that complete payment would be made by them and all EMIs would be paid without any fault or irregularity.
- Rejoinder has not been filed by the complainant. Evidence and written arguments have been filed by both the parties. Complainant has placed reliance in the judgment A.K. Naikwadi Vs. Kodak India, 2012 (95) ALR 452, Nandan Biomatrics Vs. S. Ambika Devi 2020 (3) CTC 857, Vishnu Bansal Vs. ICICI Bank Delhi SCDRC pronounced on 11.05.2021, Solaimalai Enterprises Vs. Religare Finvest Ltd. NCDRC dated 18.11.2022, Paramount Digital Color Lab Vs. Agfa India CA No.2109-2110 of 2018 decided by the Hon’ble Supreme Court, Madan Kumar Singh Vs. DM, Sultanpur CA No.5165-5166 of 2009 decided on 07.08.2009 by the Hon’ble Supreme Court, ICICI Bank Vs. Karam Chand RP No.2954/15 decided 27.08.2019 by Hon’ble NCDRC, Jasmer Singh Vs. Fullerton SCDRC Chandigarh dated 22.05.2019, Bank of India Vs. M/s Brindavan Agro Industries CA No.1720/2020 SC.
- This Commission has gone through the entire material on record. Since the firm of the complainant is a proprietorship firm and complainant Nol.1 is the proprietor and proprietorship is not a legal entity, this Commission is of the view that complaint can be maintained in the name of complainant No.1 being the proprietor and thus is also a consumer.
In view of the judgment passed by the Hon’ble Supreme Court in Madan Kumar Singh Vs. DM, Sultanpur CA No.5165-5166 of 2009 and Paramount Digital Color Lab Vs. Agfa India CA No.2109-2110 of 2018 wherein it was held that the buyers of goods or commodities for “self-consumption” in economic activities in which they are engaged would be consumers, it is held that the loan taken by the complainant was not for a commercial activity.
It is seen that OP has not filed a single document along with his reply or evidence. Complainant has filed his statement of account along with his email dated 09.07.2019 seeking reversal of penal charges despite the fact that he had been making regular payment. Another email has been written by the complainant on 12.07.2019 wherein the complainant has mentioned that July instalment date was yet to arrive and penal charges were imposed on the complainant without waiting for the EMI cutoff date. Complainant has also complained that he has not received a message for EMI withdrawal and on his own, he has paid the instalment every month in time which could be verified from his statement.
Another email is placed on record dated 30.08.2019 written by OP stating that ECS mandate was not activated in the account of the complainant as the ECS mandate was less than the EMI amount and therefore, there was delay in making payments and that they were unable to waive the penal charges imposed. Complainant has pointed out that he had provided cheque and ECS detail to the executive of the OP and that he has been making payment regularly through NEFT after the cutoff date of EMI as he did not receive the message of his money being debited from the account.
Complaint made to Ombudsman was not entertained on the ground that it pertained to NBFC. Complainant has also placed on record the interim order passed by the arbitrator appointed by the OP against him freezing the account as also order dated 16.12.2019 wherein the OP sought for recalling the interim order.
Complainant has filed an email dated 20.08.2019 received from OP wherein it is stated ‘We have checked our records and would like to inform you that ECS mandate was not active on your account since the amount mentioned for ECS mandate is less than the EMI amount and all the payments were made by you & there has been a delay in making payments from your end. The payments for Oct, Nov, & December were received in Jan 019 and thereafter there is a delay in all the remaining payments’.
It is seen that despite the complainant attaching his bank statements evidencing payments made, the OP has very casually decided the matter against the complainant. It is also seen vide email dated 12.07.2019, complainant has raised the issue that the OP has raised claims of the EMIs which were yet to mature on their date. It is also seen that in this regard OP had taken strict view against the complainant and recalled the loan facility as also had appointed an arbitrator by whose order dated 23.10.2019, a receiver was appointed to take over the assets of the complainant. These steps were taken by the OP even though complainant was regularly making payments, though there may have been some problem with the ECS mandate of the complainant.
It is also seen that OP has never intimated to the complainant ever regarding the problem in his ECS mandate and has chosen to act brazenly in this regard. Therefore, this commission is of the view that the OP has indulged in unfair trade practice causing mental agony to the complainant. OP is therefore directed to pay a sum of Rs.50,000/- as compensation for mental harassment caused to the complainant by the brazen acts of the OP.
Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.
