SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint, U/s 35 of the Consumer Protection Act, 2019 (here-in-after called as the “Act”) alleging deficiency in service against the Ops.
2. The case of the complainant, in short, is that on 12.12.2022 the counsel of the Ops namely Subodha Kanta Panigrahi had served a legal notice on him threatening him to take stringent legal action for his failure in repayment of the outstanding loan amount standing against his deceased father. On 3.2.2022, he replied requesting to waive out the loan amount as he was ignorant about the fact. Subsequently, he came to know that his deceased father had initiated one C.D. Case No.113/2010 before this Commission against the present Ops which was abated on 8.8.2018. From the certified copy of the said case, he came to know that his father had availed a loan from the Ops for purchase of one tractor. In spite of his reply, the Ops did not consider his grievance. Hence, this case.
3. In the present case, the Ops appeared and filed written version denying the averments made in the complaint. They have stated, inter alia, that the deceased father of the complainant had availed one loan of Rs.5,94,165/- on 11.1.2001 from BBCC Bank, Khaira Branch in which the complainant was the guarantor. As the deceased father of the complainant did not repay the loan amount, Ops-Bank served legal notice on his deceased father so also against the complainant on 12.12.2022. After receipt of notice, the complainant has filed the present case with a view to deprive the Ops-Bank from his legitimate claim.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. In the above peculiar facts and circumstances of the case, before delve into the merits of the case, first of all, it is to be decided as to whether the case is maintainable or not.
6. On perusal of the pleadings of both the parties and the documents relied upon by them, it is found that the deceased father of the complainant had taken the loan from Ops-Bank and purchased one tractor. It is an admitted fact that the deceased father of the complainant has not repaid the outstanding loan amount to the Ops-Bank. On the other hand, it is seen that Ops-Bank is the financier, from whom the deceased father of the complainant had taken loan for purchase of the tractor in question. Further, it is seen that the deceased father of the complainant has violated the terms and conditions of the agreement by not repaying the outstanding dues of the Ops-Bank. In the present case, the complainant is silent about what kind of service the Ops-Bank has not been rendered. That apart, the deceased father of the complainant has availed the loan from the Ops-Bank and hence, he was the borrower and the complainant was the guarantor.
7. In the above facts and circumstances of the case, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C) (Sunny & Others -vs.- Rajesh Tripathy) that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, Ops-Bank have the right to recover their dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, recovery of the outstanding dues from the loanee has always been upheld to be a legal right of the financer. That apart, in the loan agreement, the complainant was the guarantor. Therefore, the complainant is bound to repay the outstanding loan amount to the Ops-Bank and waiving out the loan amount, as claimed by the complainant, is not at all sustainable in the eye of law. But, as the complainant was ignorant about the loan incurred by his deceased father, the Ops-Bank should take a lenient view for recovery of the outstanding loan amount from him and a suitable approach is required to be made between both the parties which will in no way affect the right of both the parties. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the Ops. In the facts and circumstances of the case, no order as to costs.
Pronounced in the open court of this Commission, this the 20th day of August, 2024 under my signature & seal of the Commission.
