Andhra Pradesh

Chittoor-II at triputi

CC/56/2013

Smt V.Rajeswari - Complainant(s)

Versus

M/s. Shriram City Union Finance Ltd., rep by its Authorized Signatory, - Opp.Party(s)

K.Chakravarthy

05 Jan 2015

ORDER

Filing Date:11.10.2013

Order Date: 05.01.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

MONDAY THE FIFTH DAY OF JANUARY, TWO THOUSAND AND FIFTEEN

 

C.C.No.56/2013

 

Between

 

Smt.V.Rajeswari,

W/o. V.Sridhar,

Hindu, aged about 36 years,

D.No.6-4-434, Gali Street,

Tirupati,

Chittoor District.                                                                              … Complainant

 

 

And

 

1.         M/s. Shriram City Union Finance Ltd.,

            Rep. by its Authorised Signatory,

            No.123, Angappa Naicken Street,

            Chennai – 600 001.

 

2.         The Divisional Manager,

            M/s. Shriram City Union Finance Ltd.,

            R.C.Road,

            Tirupati,

            Chittoor District.

 

3.         The Branch Manager,

            M/s. Shriram City Union Finance Ltd.,

            No.2/43, Jayaramarao Street,

            Srikalahasti,

            Chittoor District.                                                                  …  Opposite parties.

 

 

            This complaint coming before us for final hearing on 18.12.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Chakravarthy, counsel for the complainant, and Sri.D.Jayachandra, counsel for the opposite parties, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-12 and 14 of C.P.Act 1986, by the complainant Smt. V.Rajeswari, praying the Forum a) to direct the opposite parties 1 to 3 to issue copy of statement of account and copy of agreement by furnishing actual due amount owed by the complainant and payable to the opposite parties b) directing the opposite parties to issue clearance certificate by receiving the due amount of Rs.18,41,151/- as on 16.04.2013, in case if the opposite parties fail to issue copy of statement of account and agreement copy to the complainant c) to direct the opposite party to pay Rs.50,000/- towards damages for causing mental agony and costs of the complaint. 

            2.  The brief averments in the complaint are:-  That the complainant availed a loan of Rs.25,00,000/- from the opposite parties on 29.10.2010 agreeing to repay the same with interest at 16.50% p.a. in 60 monthly installments @ Rs.76,042/- per month, which includes a sum of Rs.41,667/- towards principal and Rs.34,375/- towards interest commencing from 15.11.2010. The complainant made payments regularly for some installments. Thereafter, she met with an accident in the month of November 2011. As such, she underwent treatment for 6 months by spending huge amounts. Therefore, she is unable to pay some installments as per the structure of the agreement. In the month of November 2012, the complainant received a prior arbitration notice from one Mr.K.Maheswara Rao, Advocate, Hyderabad, for which she gave replay expressing her willingness to pay the arrears of installments and also to settle the agreement on or before March 2013. A copy of the said letter also sent to opposite party No.3. The said notice was served on the Advocate Mr.K.Maheswar Rao and also on opposite party No.3 and acknowledgements were also received. In the first week of January 2013 in pursuance of the undertaking of complainant for settlement, opposite party No.3 issued settlement letter on 31.01.2013 informing the complainant that she has to pay balance amount of Rs.28,00,000/- as on 04.02.2013 towards loan agreement without furnishing a copy of statement of account. Then the complainant approached opposite party No.2 and requested to furnish the statement of account, but they did not do so. On 07.02.2013 the complainant received a notice for appearance before the Sole Arbitrator at Hyderabad in Arbitration Case No.02/2013 filed by the opposite party No.3 for a claim of Rs.34,46,970/- against the complainant.

            3.  The complainant further stated that she is liable to pay a sum of Rs.20,53,134/- as on 15.01.2013 (27 installments at Rs.76,042/- each)  and she paid a sum of Rs.14,10,952/- as on 23.11.2012. Hence, the complainant is liable to pay arrears amount of Rs.6,42,182/- only and the future principal a sum of Rs.13,75,011/- (33 installments at Rs.41,667/-). Therefore, the complainant is liable to pay only a sum of Rs.20,17,193/- including the arrears of installments. The opposite parties without furnishing the copy of statement of account kept the complainant in dark. The opposite party No.3 have issued a letter of settlement dt:31.01.2013 claiming Rs.28,00,000/- towards final settlement as on 04.02.2013, whereas the arbitration notice served on the complainant on 07.02.2013, the claim amount is mentioned as Rs.34,46,970/-. The opposite parties thus committed deficiency in service and caused mental agony to the complainant. Hence the complaint.

            4.  The opposite party No.2 filed the written version and the same was adopted by opposite parties 1 and 3 denying the complaint allegations, except availing loan of Rs.25,00,000/- on 29.10.2010 by the complainant and further contended that the opposite parties have filed an Arbitration Case No.02/2013 at Hyderabad. In the said case, notices and accounts copy as well as copy of arbitration case were served on the complainant. The opposite parties also got issued pre-arbitration notice, inspite of receiving the same, she failed to appear before the arbitrator and remained exparte. Later the arbitrator also passed award in Arbitration Case No.02/2013 on 23.07.2013 directing the complainant to pay Rs.34,46,970/- to opposite parties. The arbitration award also sent to the complainant through registered post with acknowledgement due. If at all, the complainant is aggrieved by the said arbitration award, she can agitate against the arbitration award before the proper Forum. The opposite parties further contended that the contract between the complainant and the opposite parties is business, as such the complainant is not a consumer and she is not entitled to the reliefs sought for and prays the Forum to dismiss the complaint with costs.  

            5.  Both parties have filed their respective chief affidavits and also written arguments. Exs.A1 to A13 for the complainant and Exs.B1 and B2 for the opposite parties were got marked. Heard the counsel for both the parties.

           

 

6.  Now the points for consideration are:-

            (i).  Whether the loan transaction between the complainant and opposite parties

                  dt:29.10.2010 is for business / commercial transaction?  

            (ii)  Whether there is any deficiency in service on the part of the opposite

                  parties?

            (iii)  Whether the complainant is entitled to the reliefs sought for?

            (iv)   To what relief?

            7. Point No.(i):- To answer this point, burden lies on the complainant to establish that the loan was obtained not for any business or commercial purpose, since the opposite parties specifically mentioned in their written version, chief affidavit and in written arguments that the transaction between the complainant and opposite parties in granting the loan is for business purpose, as such the complainant availed the loan for commercial purpose. Therefore, the complainant is not a consumer under Section-2(d) of the C.P.Act. To disprove this version of the opposite parties, the complainant did not file any scrap of paper or atleast pleading to that effect in her complaint. For the reasons best known, the complainant also failed to file a copy of agreement entered into by the complainant and opposite parties dt:29.10.2010 while taking the loan. Apart from it, the complaint is filed on 11.10.2013, whereas the arbitration award in Arbitration Case No.02/2013 was passed on 23.07.2013 i.e.          3 months after the arbitration award this complaint is filed, which clearly establish that only to avoid the compliance of the arbitration award, this complaint is filed. The arbitration award under Ex.B1 discloses that the complainant herein has availed the loan for sanction of enterprise finance loan / business expansion loan of Rs.25,00,000/- for the purpose of expansion of business of the complainant. This finding / observation made in Ex.B1 was also not denied by the complainant even in the written arguments filed on behalf of the complainant and also in the chief affidavit of complainant, as such the purpose of availing loan by the complainant can be presumed as commercial purpose. Therefore, the complainant is not a consumer as defined under Section-2(d) of the C.P.Act, which runs as follows:-

“consumer” means any person who – (i) 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   (ii)  [hires or avails of] an 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 are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for an commercial purpose]

   

               The word “services” is defined under Section-2(o) as follows:-

“service” means service of any description which is made available to potential [users and includes but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy board or 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

           

            The opposite party, which is a finance company, will come under the purview of service. When the complainant does not come under the meaning of consumer, this Forum cannot entertain the complaint. As there was no specific mentioning of the complainant in her complaint or in her chief affidavit or in her written arguments that she availed loan for eeking-out livelihood or any purpose other than the business / commercial. Therefore, it is deemed that the loan availed by the complainant from opposite parties 1 to 3 is for the purpose of expansion of her business as contended by the opposite parties and also observed in the Arbitration Award dt:27.03.2013 in Arbitration Case No.02/2013. On this ground, we are of the opinion that the complainant is not a consumer and the complaint is not maintainable before this Forum. Accordingly, this point is answered.

            8. Point No.(ii):- In view of our holding on point No.1, that the complainant will not come under the purview of the word consumer and complaint is also not maintainable before the District Consumer Forum, whether there is any deficiency in service on the part of the opposite parties is not necessarily be discussed. However, the payments made by the complainant are totally 16 installments in total, some of the installments were part payments out of Rs.76,042/- i.e. on  one payment Rs.53,108/- was paid and in another payment Rs.20,000/- were paid and in another payment Rs.5,000/- were paid on 08.11.2011 and 30.11.2011 respectively. There is default in payment of installments from July 2011 to October 2011, December 2011 to March 2012 and also from July 2012 to October 2012. Thereafter from December 2012 to March 2013 last payment was made on 30.04.2013. Altogether, the amount paid is Rs.13,60,486/- in total. As per the agreement admittedly the complainant has to pay total amount of Rs.45,62,520/- in 60 monthly equal installments @ Rs.76,042/- per each installment. Since the complainant committed default, the opposite parties have approached the arbitrator as agreed under agreement that too after giving prior arbitration notice. Under the above circumstances, we are of the opinion that the complaint is not maintainable before this Forum and the complainant cannot plead that there is deficiency in service on the part of the opposite parties having committed default. The opposite parties are specifically contended that the statement of account, copy of arbitration proceedings and pre-arbitration notice were also served on the complainant, which was not denied by the complainant. The complainant also admitted that she received prior arbitration notice. So it seems that the complainant is suppressing some of the aspects in respect of the transactions. Though the complainant pleaded she met with an accident in the month of November 2011 and took treatment for about 6 months, no scrap of paper is filed to prove this aspect such as when she met with accident (specific date) and from which date to which date she took treatment, in which hospital she took treatment etc. particulars were not found place anywhere in her complaint, chief affidavit etc. Therefore this point is also negatived.

            9.  Point No.(iii):-   In view of our holding on points 1 and 2, we are of the opinion that the complainant failed to establish her case and therefore she is not entitled to the reliefs sought for. Exs.A1, A2, A3, A6, A9 and A10 shows the payments made by the complainant totally in a sum of Rs.13,62,486/-. Ex.A7 letter dt:31.01.2013 addressed by the opposite party No.3 shows that it was addressed to the Branch Manager, M/s.Shriram City Union Finance Ltd., Tirupati, that the complainant has taken SME loan of Rs.25,00,000/- confirming that she has balance to pay as on 04.02.2013 a sum of Rs.28,00,000/- for settlement. The complainant relied on Ex.A7 stated that the opposite parties mentioned that the balance amount to be paid is Rs.28,00,000/-. But Ex.A7 shows that it is a request made to Branch Manager, to confirm the loan amount to be paid towards settlement at Rs.28,00,000/-. But it does not mean that total amount to be paid is only Rs.28,00,000/- for discharging the loan due. Therefore, under the above circumstances, we are of the opinion that the complainant is not entitled to the reliefs sought for and the complaint is therefore liable to be dismissed.

            10.  Point No.(iv):-   In view of our holding on points 1 to 3, we are of the opinion that the complainant failed to establish her case and complaint therefore is liable to be dismissed.

            In the result, the complaint is dismissed. However, no costs.                           Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 5^th day of January, 2015.

 

       Sd/-                                                                                                                      Sd/-                                          

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: Smt V.Rajeswari (Evidence Affidavit filed).

RW-1: Sri A.Ramana Reddy (Evidence Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1.		Copy of pass book of IDBI Bank Tirupati branch stand in the name of the Complainant showing the payment of five installments through a cheque to the Opposite parties for the Year 2010 and 2011.
2.		Copy of pass book of IDBI Bank Tirupati branch stand in the name of the Complainant showing the payment of one installment through a cheque to the Opposite parties during the Year 2011.
3.	31/12/2010	Copy of bunch of receipts (08 in Number) issued by the Opposite parties for the payments of installments by the Complainant.
4.	05/11/2012	Legal notice of prior arbitration Dt.05-11-2012 issued to the complainant on behalf of the opposite parties.
5.	23/11/2012	Copy of letter of request Dt: 23.11.2012 addressed to the counsel for the opposite parties and opposite party No.3 with postal receipt.
6.	23/11/2012	Copy of receipt Dt: 23.11.2012 for Rs. 1, 00,000/- issued by the opposite parties.
7.	31/01/2013	Letter Dt: 31.01.2013 issued by opposite party No.3 for settlement of loan agreement of the complainant.
8.		Notice of appearance before the Arbitral Tribunal at Hyderabad received by the complainant.
9.	05/03/2013	Copy of receipt Dt: 05.03.2013 for Rs.76,042/- issued by the opposite parties.
10.	16/04/2013	Copy of receipt Dt: 16.04.2013 for Rs.1, 00,000/- issued by the opposite parties.
11.	19/04/2013	Office copy of legal Dt: 19.04.2013 issued to the opposite parties along with postal receipts.
12.		Postal acknowledgement cards 3 in numbers from the Opposite parties No.1 to 3.
13.	26/04/2013	Reply notice Dt: 26.04.2013 issued by the opposite parties.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1	26/04/2013	Award copy filed on behalf of OP
2.	23/07/2013	C.C. of execution petition and Orders there on in Execution petition No. 9/2014 in Arbitration case No.02/2013.

 

 

                                                                                                                                                                    Sd/-    

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

              Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.