FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the complainant Mr Goutam Roy was sanctioned a personal loan of Rs.1,88,966/- by the OP1. Against the same he was transferred a sum of Rs.1,73,442/- on 22.10.2018 in his Bank account. The complainant wanted clarification for such less payment but he was not properly replied of by the OP1. After that he repaid the loan by paying Rs.1,73,442/- on 15.01.2019. But on all a sudden some persons of OP1 asked him to pay a sum of Rs.67,900/- for the dues of purchasing a Samsung mobile set from the Reliance Digital, Diamond Plaza, Nager Bazar being the OP3. The complainant submits that he has not purchased any mobile set from the OP3 and sent one letter dated 15.01.2019 to that effect to the OP1 but the OP1 has not replied the said letter rather started harassing the complainant. Being disturbed by the OP1 the complainant went to OP3 to enquire into the matter and O3 showed him a tax invoice of Rs.67,900/- in the name of the complainant. Thereafter the complainant received a legal notice dated 06.02.2019 to repay the outstanding amount of Rs.58,554/- . The complainant sent reply to the said notice and informed the facts to RBI & Banking Ombudsman to redress the problem. Inspite of that the OPs1 & 2 maintained pressure without investigating the case. The complainant is in severe mental agony and finding no other way he has approached the Commission for proper justice with relief/reliefs.
The OPs 1 and 2 have contested the case by filing their WV contending inter alia that the case is not maintainable because of the following reasons. The complainant has taken personal loan being No. 17981082 for an amount of Rs. 1,88,968/- but after due deduction the complainant was disbursed an amount of Rs. 1,73,442/- which was transferred to the bank account of the complainant but as he was not satisfied the complainant closed the loan account and the loan account stand closed. The OPs 1 and 2 further states that the consumer durable loan was sanctioned only at the willingness of the customer to purchase some consumer durable goods. The capital first Ltd. has been merged with IDFC Bank Ltd. after observing necessarily formalities as per statutory guidelines and thereafter IDFC Bank has again been changed from IDFC Bank Ltd. to IDFC First Bank Ltd. OPs 1 and 2 also stated that the complainant took loan from the OP-1, one being personal loan which is closed now and a second loan being a consumer durable loan which now exists. They have followed the usual procedure sanctioning consumer loan and at the time of purchasing a product certain amount of down payment is made by the customer.
The OP3 has also contested the case by filing their WV contending inter alia that the complainant has withheld and suppressed material information from this Commission and submits that the complainant has purchased a Samsung Note 9 128GB hand set having IMEI No. 359447091301721 vide Tax Invoice No. 895711418902775 from the store of the OP3 by availing a consumer loan from the OP1 being Loan Ref. No.: 304992212.after paying a down payment of first EMI of Rs.11429/- towards the cost of the hand set. After receiving Delivery Advice from the OP1 dated 14.10.2018 the said mobile was delivered to the complainant after receiving First Installment of EMI of Rs.11,429/- of the sanctioned loan as stated in the Delivery Advice and the loan application regarding Consumer Durable Loan being No. 17945841 of the complainant has been approved vide approval No. 0304992212 and Invoice /Bill No. 895711418902775 regarding the purchase of Samsung Nobile Smart Phone Note 9 128GB by the OP3 and after due verification of the complainant as per usual practice and upon the outstanding balance of Rs.59,254 together with interest and charges as per the terms of the said documents is due to be paid under EMI. The OP-3 further states that a loan recall notice dated 08.03.2019 was issued by the OP -2 to the complainant for realization of the outstanding amount of Rs. 56,582/- out of Rs. 67,000/-. As such, there is no deficiency in service on the part of the OP-3 and in fact, no claim of any nature has been made against the OP-3 by the complainant. The OP-3 further states the complainant with malafide intention to avoid the outstanding due arisen out of purchasing the mobile handset wants to harass the OPs in order to entangle in a false allegation. The OP-3 also states that only after showing the willingness to purchase the said product the consumer durable loan was approved and delivery advice was accordingly issued by the OP-1 and tax invoice bill was raised. The complainant paid the first EMI of Rs. 11,318/- towards total cost of product of Rs. 67,900/- as per delivery advice. The loan was availed by the complainant and the OPs have documentary proof for such statement made on their behalf and the burden lies upon the complainant to prove that the complainant has not taken such loan or has not taken delivery of the mobile from the OP-3. There is no cause of action and there is no prima facie case in favour of the complainant for which the OPs 1 and 2 has prayed for dismissal of the complaint.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3:-
All the points are taken up together for sake of convenience and brevity in discussion.
The fact of the case in brief is that the complainant Mr. Goutam Mitra was disturbed by the representatives of the OP-1 for the allegation of not making repayment of the consumer loan of Rs. 67,900/- availed for purchasing one mobile set of Samsung Make from the OP-3 which as per submission of the complainant, is not at all availed of by him. While perusing the evidence of the OP 1 and 2 we have observed that no document has been submitted to prove that the complainant applied for the consumer durable loan to them. No written application of the complainant requesting the OPs 1 & 2 for sanctioning of the said consumer durable loan has been furnished by the OPs 1 and 2. The surprising fact of the case is that the OPs are arguing that the burden of proof lies upon the complainant that he has not taken the loan from them which is not according to law. The loan is alleged to have been disbursed by the OPs to whom there is no proof or evidence to show that they have sanctioned the loan on the written request of the complainant. The evidence of the OP3 is supported by two documents (Xerox copies), one being a duplicate receipt of the alleged sale of one mobile set of Samsung make and the other one is a delivery advice addressed to RD DIAMOND CITY KOLKATA by the OP 1. The said delivery advice dated 14.10.2018 is perused and it is observed that Capital First being the OP1 is informing the OP3 that they have approved the loan application of Gautom Roy and mentioned the break up details of disbursement therein. In the said advice it is mentioned to collect the down payment of Rs.11429.00 from the customer and to deliver the product at the address mentioned in the advice. In the said advice it is also mentioned in the Note column under point No. 4 “ Do not deliver the product over the counter. Only deliver it at the address provided above. Only exceptions are smartphones, camera, laptops which can be handed to customer at store. “
Under point No. 7 it is mentioned “ Dealer has to check original photo Id proof of customer before handing over goods.”
Under point No. 8 it is mentioned “ It is dealer’s responsibility to have delivery proof with customer acknowledgement on records and to share with Capital First as and when requested.
On perusal of the records we have found neither the mobile has been sent to the recorded address of the complainant nor the mobile has been handed over by the OP3 to the complainant as per the above Note under Point No. 4,7 & 8. The OPs have not proved by any document that the complainant has applied for a loan for purchase of the mobile set nor they have proved that the mobile set has been handed over to the complainant. The OPs have miserably failed to prove their claim. It is absolutely a fake and fictitious demand of the OPs.
In the result, the consumer complaint succeeds.
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the OPs with the following directions.
- The OP members are permanently restrained from creating any disturbances by asking any payment from the complainant.
- The OP members are directed to pay jointly and severally a sum of Rs.20,000/- to the
complainant as compensation for creating harassment and mental agony.
- The OP members are also directed to pay jointly and severally a sum of Rs. 10,000/- to the complainant as litigation cost.
The above order is to be complied by the OPs within a period of 45 days from the date of this order. In default, the complainant will be at liberty to put the order into execution.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.
