24.11.2014
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal has been preferred against the judgment and order dated 23.5.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Cooch Behar, in Case No. DF 55/12, dismissing the Petition of Complaint, the Cash Credit facility centering which the present Complaint revolves having been for commercial purpose.
The essential facts, leading to the present Appeal, are adumbrated hereinafter.
The Appellant/Complaint had availed of Cash Credit facility (ABC/KOL/RTL/81/2010-2011 dated 22.6.2010) with the Respondents/ Ops-Bank for the purpose of ‘working capital of business’ (Running Page-4 of the Petition of Complaint) on the terms and conditions of payment of Processing Charges @ 0.50% on the loan amount and Rs. 1,500/- per annum as renewal processing charges. But during the continuity of the said Cash Credit Account the Appellant/Complainant noticed debit from the said account of some other charges, such as, Consolidated Charges, Cash Deposit Charges, etc. beyond the agreed terms and conditions of the said Cash Credit account and also in violation of the RBI guidelines dated 12.11.2010 issued following the RBI Circular DBOD No. LEG.BC-86/09.07.005/2008-09 dated 25.22.2008. After noticing such non-contractual debits when the Appellant/Complainant brought the matter to the notice of the Respondents/Ops-Bank the latter reversed some of such debits, leaving the other debits as they were. Then the Appellant/Complainant advised the Respondents/Ops-Bank to stop renewal of the Cash Credit facilities and also requested to reverse the non-contractual debits as mentioned hereinbefore, but to no effect till the date of filing the Complaint. In this factual background, the Ld. District Forum passed the impugned judgment and order dismissing the Complaint as mentioned at the outset. Aggrieved by such judgment and order the Appellant/Complainant has come up before this Commission.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum erred in law in observing that the Cash Credit Account involved in the case was for commercial purpose and the Appellant/ Complainant was thus not a Consumer as per definition of the Consumer Protection Act, 1986, because the business to which the Cash Credit Account is linked is for earning livelihood for self-employment. It is also contended by the Ld. Advocate that the Respondents/Ops had committed unfair trade practice by debiting some charges which were not only beyond the terms and conditions of the said Cash Credit Account but also against the concerned RBI Circular. It is further contended by the Ld. Advocate that such unfair trade practice was conspicuous from the act by the Respondents/Ops-Bank in respect of reversing some debits after lodging Complaints by the Appellant/Complainant with the Respondents/Ops-Bank in that regard. The Ld. Advocate concludes that in this position of the case, the impugned judgment and order should be set aside, it being illegal and improper.
The Ld. Advocate for the Respondents/Ops-Bank, on the other hand, resisted the said argument on behalf of the Appellant/Complainant and submits that the Appellant/Complainant was not a Consumer as per definition of the Consumer Protection Act, 1986 on the ground that the Cash Credit Account, round which revolves the entire facts of the present case, was for the sole purpose of promotion of business which was not for the purpose of self-employment, as it is conspicuous from the absence of any averments to that effect in the Petition of Complaint. It is also submitted by the Ld. Advocate that what was debited from the said Cash Credit Account was debited in accordance with the established terms and conditions of the Respondents/Ops-Bank and that what was inadvertently debited from the said Account had already been reversed immediately after the same being brought to the notice of the Respondents/Ops-Bank. Finally, the Ld. Advocate submits that in this view of the case the impugned judgment and order should be sustained, it being legal and proper. For such submission the Ld. Advocate has taken the help of a decision in Laxmi Engineering Works Vs. PSG Industrial Institute reported in (1995) 3 SCC 583.
We have heard both the sides, considered their respective submissions and perused the materials on records including the Petition of Complaint.
From the Petition of Complaint, as available on records, it is revealed that the Cash Credit facility in question was availed of for the financial assistance of the business. But nowhere in the Petition of Complaint is there any indication of averment to the effect that the business involved was carried on for self-employment, which is a pre-requisite for being eligible as a Consumer as per Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986. The absence of such averment in the pleading itself cannot be made up by subsequent documents like evidence-in-chief or replies by the Complainant/Appellant to the questionnaire by the Ops/Respondents. It is well-settled principle of law that evidence, if any, adduced beyond the pleadings would not be admissible, nor can any evidence be permitted to be adduced, which is at variance with the pleadings. In this respect we find substance in the submission of the Ld. Advocate for the Respondents/Ops-Bank.
It is thus established that as the Cash Credit Account of the Appellant/Complainant was related to promotion of business and the said business was not averred for self-employment in the pleadings, the Appellant/Complainant cannot be said to be a Consumer.
In view of the foregoing discussion and also having regard to the decision of the Hon’ble National Commission in M/s. NNP Organics Pvt. Ltd. Vs. The Chairman-cum-Managing Director, Indian Bank & Ors. reported in 2014 (3) CPR 468 (NC), we are of the opinion that the Appellant/Complainant is not a Consumer and hence, there is no illegality or infirmity in the impugned judgment and order.
Consequently, the Appeal is dismissed. The impugned judgment and order stands affirmed. No order as to costs.
