Delhi

New Delhi

CC/735/2013

Ram Trading Company - Complainant(s)

Versus

M/S. ICICI Bank Ltd. - Opp.Party(s)

20 May 2016

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

 

Case No.C.C./1076/2013                                                                                                            Dated:

In the matter of:

M/S RAM TRADING COMPANY

Office at 537, IInd Floor,

Lahori Gate, Naya Bazar,

Delhi

 

        ……..COMPLAINANT

 

VERSUS

ICICI BANK LIMITED

Through its Manager

82, Janpath,

New Delhi-110001

 

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

 

ORDER

 

This complaint under section 12 of The Consumer Protection Act, 1986 is filed by the complainant, a proprietorship firm alleging, in brief, that in the year 2006, the complainant for the business purposes, had taken overdraft in the current account in the sum of Rs. 14.50 lakhs at the interest rate of 0.50% above BPLR i.e. 13.50% from The Bank of Rajasthan Limited which now has been merged with OP bank. In the year 2010 when the complainant was not requiring the said loan facility, it requested the OP to cancel the said loan facility. The OP by its letter dated 24/7/2010 had cancelled the said loan facility of O.D. Limit Rs. 14.5 lakhs in the current account of the complainant. The grievance of the complainant is that despite that the OP bank has charged Rs. 37,776/– as penal interest and has also treated the account of the complainant as NPA on 30/6/2009. The complainant protested and raised issue with the OP and the matter was also raised before banking ombudsman, but to no benefit to the complainant. The complainant has prayed for the following reliefs against the OP bank:

1. To direct the OP to refund the penal interest amount of Rs. 80,000/- and law charges of Rs. 37,776/- to the complainant along with interest @18% p.a. till the date of payment.
2. To return the remaining original title documents of the complainant herein for the property bearing No. 38-A, East Uttam Nagar, New Delhi which are kept under the illegal possession of the OP.
3.     To pass an order of compensation of Rs. 50,000/- for the mental agony & pain and harassment in favour of the complainant and against the OP.
4. To pass an order of Rs.21,000/- in favour of the complainant and against the OP towards the litigation charges and other expenses.
5. Any other relief or remedy which this Hon’ble Forum may deem fit and proper may also be passed in favour of the complainant and against the OP.

 

The notice of the complaint was issued to the OP bank, who contested the complaint and filed written statement alleging one of the preliminary objections that the complaint is barred by limitation. According to the OP, the complainant has paid the amount on 23/7/2010 and no dues certificate was issued by the OP to the complainant on 2/8/2010 and from 23/7/2010 the period of two years has expired on 22/7/2012, wherein the present complaint has been filed in the month of August, 2013. So it is barred by time. The OP has also taken the preliminary objection that the complainant has not come before this District Forum with clean hands, as it has concealed the material fact that it is on filing an application before the Hon’ble C.M.M. by the OP under section 14 of SARFESAI Act and appointment of receiver by Hon’ble C.M.M., Delhi for taking possession of the recured assets. The complainant has paid the amount to the OP. On merits, it is admitted that the said loan facility/overdraft facility was granted to the complainant against  equitable mortgage created in respect of a residential house property bearing number 38-A East Uttam Nagar, New Delhi, having an area of 50 Sq.yds. standing in the name of Smt. Asha Rani Goel. The OP has denied other facts stated in the complaint and has prayed for its dismissal.

 

In the rejoinder the complainant has denied the averments made in the reply of the OP and has reaffirmed the facts stated in the complaint. In support of its case, the complainant has filed affidavit in evidence of Mr Raj Kumar Goel, the proprietor of the complainant firm. On behalf of OP the affidavit in evidence of Mr Chetan Parkash Manager (Legal) with OP is filed. Both parties have also filed written arguments.

We have heard the learned counsel for the parties and have gone through the written arguments filed on their behalf, record of the case and relevant provisions of law.

 The question of limitation is raised on behalf of the OP bank. Admittedly, the loan/overdraft facility was discontinued by the complainant for which request was made by complainant to the OP bank and by letter dated 24/7/2010 the said loan facility was withdrawn. But according to the complainant, as alleged in paragraph number 11 of the complaint, the OP bank had intimated the complainant, by letter dated 18/8/2010, that the request of the complainant for amendment of penal interest and law charges has been rejected by the competent authority. Therefore, in our view, the cause of action would accrue from 18/8/2010 and not from 24/7/2010, as alleged by the OP bank. The present complaint being filed on 8/8/2013 is still barred by time, as the same is not filed within the prescribed limitation period of two years under Section 24 A of The Consumer Protection Act, 1986.

 

In order that a complaint is maintainable before consumer fora, it has to be in respect of redressal of grievances of the consumer. Meaning of "consumer" is explained in Section 2 (1) (d) of The Consumer Protection Act, 1986. A careful reading of the said provision of law shows that availing of services by a person by paying consideration makes the said person a consumer, except when such services are availed for commercial purposes. We are not unmindful of the Explanation to said Section 2 (1) (d), which indicates that even the services hired or goods bought for commercial purposes by a person would not take out the said person out of the definition of consumer if the said services are availed or the goods are bought by the said person for earning his livelihood by means of self-employment. We are also not oblivious of the fact that there being unity of interest between a proprietorship firm and its proprietor the latter, having complete control of over the former, both are considered as one, and the same, legally. As per own case of the complainant the said loan/overdraft facility was obtained by the complainant for business purposes. To our mind the benefit to a person to avail the machinery under the provisions of The Consumer Protection Act, 1986 at substantially reduced court fee than what is required to be paid in a regular civil suit is available only to the consumers who have bought goods or availed services for their personal use or use of their family, but not for business and commercial purposes.

Looking at the provisions of Section 2 (1) (d) (ii) hiring of services for business or commercial purposes are excluded from the meaning of the "consumer". The Explanation to this provision of law is an exception to the general rule. But the implication of the Explanation, in our view, is not for the consumer forum to presume, rather to bring out the case within the Explanation of the said provision of law, the complainant must plead and prove by filing affidavit in evidence coupled with the documentary evidence that the services hired by the complainant for commercial or business purposed were for earning livelihood by means of self-employment of the complainant firm / proprietor of the complainant. The complainant may have number of sources of income out of which only that source of income being commercial purpose which can be said to be earning a livelihood by means of self-employment would attract the Explanation to the said Section 2 (1) (d). In the absence of specific averments to the effect in the complaint and evidence of the complainant in this regard, we are compelled to hold that the complainant is not a "consumer" within the meaning of Section 2 (1) (d) of The Consumer Protection Act, 1986. Therefore, the complainant is not maintainable and there is no need to go into the other arguments raised from both sides.

 

In view of the above discussion the complaint is dismissed. A copy of this final order be sent to both parties, free of cost by registered post. This order be sent to server (www.confonet.nic.in ). The parties are left to bear their own cost of litigation.

The file be consigned to the record room.

 

Pronounced in open Forum on ­­­­­­20.05.2016

 

 

 

 

(S K SARVARIA)

PRESIDENT

 

                                            (H M VYAS)

MEMBER