By : SMT. BANDANA ROY, PRESIDENT
The short history of the case is the complainant decided to purchase a second hand Mahindra & Mahindra pick up van from the OP no. 3 at a price of Rs. 2,50,000/- for his livelihood. The vehicle was registered as WB 29A-0247. With this view the complainant approached the OP no. 1 under the OP no. 2 for a financial accommodation of Rs. 1,70,000/- which the OP 1 and 2 readily agreed to finance Rs. 1,70,000/- to the complainant and the complainant paid the residue amount of r s. 80,000/- from his own fund. At the time of payment of the loan amount the OPs 1and 2 took all the documents of the vehicle in their custody and also they took delivery of six blank chqeue from the complainant issued from the Allahabad Bank A/C No. 50408601361 in the name of the complainant and also the registered owner, the OP nol. 3 was also involved with the loan agreement. On 16.10. 2017 the Op no.2 sent a consent letter in favour of the registered owner, the OP no. 3 and asked him to endorse name of the financer on the RC Book and also in the insurance paper of the vehicle. The MV Department ,Tamluk was also appraised of the same. The complainant paid Rs. 80000/- to the OP no. 3 and also complied by all the formalities offered by the Finance Co. at the time of taking the loan amount. The RTO Office made all necessary transfers at the instance of the Financer. But surprisingly the OP 1 and 2 still did not make payment of Rs. 1,70,000/- to the OP no 3 in spite of repeated approached by both the complainant and the OP no.3. Now every time the OP nol. 3 is creating pressure upon the complainant for payment of Rs. 1,70,000/- ignoring the whole above situations. Thereafter the complainant and the OP No. 3 both jointly sent legal notice on 06.02.2018 asking the OP 1 and 2 to disburse the agreed loan amount of Rs. 1,70,000/- but the said OPs did not care to answer the same notice nor paid any amount to that effect. The complainant alleges that in spite of taking custody of all the relevant documents of the vehicle towards hypothecation of the loan, the OPs no. 1 and 2 did not pay the loan amount and thus has committed deficiency of service and also unfair trade practice upon the complainant.
Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service and unfair trade practice against the OP Nos. 1 and 2.
The OP No.1 and 2 appeared and contested the case by filing a singly written version. It is the case of the OPs that in usual course of business the complainant approached these OPs for financial assistance the tune of Rs. 1,70,000/- for purchase of one old vehicle (Mahindra and Mahindra Max pick up Van) being registration WB 29A- 0247 and these OPs agreed to finance the complainant and OP No.2 issued one consent letter in favour of Sukanta Das with various terms and condition. These OPs again and again called the complainant to take effective steps so that the loan be finalized but the complainant remained silent. After a gap of 3 months the complainant sent a legal notice on 06.02.2018 alleging that the OPs did not sanctioned the loan. The documents of the vehicle was endorsed and handed over to the OPs for further processing the loan. The OP denied collection of cheques from the complainant.
Under the above mentioned circumstances, the OPs have prayed for dismissal of the complaint.
The points require discussion are whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.
Decision with reasons
Both the points are taken up together for consideration for the sake of convenience.
We have carefully perused the affidavit of the complainant, the written version and all the documents filed by both the parties, heard the submission of the ld. advocate for the complainant as well as the OPs.
The contesting Ops no. 1 and 2 have challenged the maintainability of the case on the ground that in terms of Section 2(d) of the Consumer Protection Act, 1986, a consumer does not include a person who avails such service for any commercial purpose. According to the contesting OPs, the complainant had availed the financial facility for purchasing a commercial vehicle and that too was operated by appointing a driver. Further the complainant himself had represented that he owns one more vehicle for his business purpose which he mentioned in the loan application executed by the complainant.
In this regard it appears from the complaint that the complainant has stated that for earning h is livelihood, he decided to purchase an second hand Mahindra & Mahindra Pick- Up Van having registration No. WB 29 A/0247 from its registered owner, the OP no. 3 at a price of Rs. 250000/-. So, it cannot be stated that the complainant wanted to take loan from the contesting OPs. for the purpose of purchasing a vehicle for commercial purpose.
The OPs fail to prove by any cogent evidence that the complainant wanted to purchase the vehicle for the business purpose.
So, on this score the allegation of the OPs that the complaint is not maintainable is not substantiated.
Admittedly the complainant had approached the OPs. no 1 and 2 and requested them for financial assistance to the tune of Rs 1,70,000/- for purchase of one old Mahindra & Mahindra Pick Up Van having registration No. WB 29 A/0247 and the OP Nos. 1and 2 allowed the said application and sanctioned financial facility of Rs. 1,70,000/- and sent one consent letter in favour of the complainant subject to terms and conditions which the OPs 1 and 2 mentioned in the paragraph 9 of their written version. It is also stated by the OPs 1 and 2 that they time to time called the complainant to take effective steps so that the loan be finalized but for long time they were silent and admittedly after a long period of three months the complainant sent a legal notice through their Ld advocate for non- sanction of the loan, which allegation is denied by the OPs. The contesting OPs. stated that they had no negligence in the service of sanctioning of the loan to the complainant.
From the records it appears that the original documents of the vehicle was endorsed and handed over to the OPs no 1 and 2 for further processing of the loan but the OPs alleged that the complainant did not show any interest for availing the loan and prolonged the process which the Ops have alleged in paragraph 13 of their written version. These Ops also stated in paragraph 14 of the written version that after carrying out the entire loan process including allocation of funds for the said loan, rate of interest, field verification, personal interview the complainant did not respond for the same. The Ops further deny that their representatives collected the cheques from the complainant and after that they did not respond.
The contesting OPs have filed xerox copy of the consent letter dated 16.10.2017.
The OP no 3 has not filed written version nor contested the case.
Against the allegation of the written version the complainant did not file any affidavit in chief to counter the allegation of the OPs no 1 and 2. It also appears that the complainant has failed to prove any deficiency on the part of the OPs 1 and 2 regarding sanction and processing the loan. So, we are of the view that the complainant is not entitled to any compensation or litigation cost in this case. The OPs no 1 and 2 are liable to pay the loan amount of Rs. 1,70000/- only to the complainant in view of the admitted agreement.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/111 of 2018 be and the same is allowed on contest against the OP Nos 1 and 2 in part and dismissed ex parte against the OP no 3 as no relief has been prayed against the OP no. 3.
The OP Nos. 1 and 2 are directed to pay a sum of Rs. 1,70,000/- to the complainant as loan for purchasing the vehicle as mentioned in the body of the complaint within one month from the date of this order, in default the said OPs will be liable to pay 9% interest per annum on the same amount till final satisfaction.
Let copy of the judgment be supplied to all the parties free of cost.
