JUDGMENT

Shri A.K.Patra,Paresident

1. This complaint is presented alleging deficiency of service and unfair trade practice on the part of the Ops.
2. The Complainant has prayed to hold that, Opp. No.1 to 3 are liable for unfair trade practice in unlawfully rescheduling/enhancing the period of EMI to 49 months and to hold  the same  not binding on complainant as he is ready to pay the EMI up to 46 months only. Further he has prayed to direct the Opp.No.1 to 3 not to use the cheque issued by him at the time of obtaining the loan and pray for order directing the  Opp No.1 to 3 for  issuance of “No Due Certificate”  after payment of all 46 EMIs and further pray for grant of compensation of Rs.2,00,000/- with litigation cost of Rs.30,000/-.
3. Heard. Perused the materials available on record and given our thoughtful consideration upon the submission of the Parties & arguments of their learned counsels.
4. Brief fact of the complaint are that, the complainant is a registered partnership firm availed loan from the OP No.3 for an amount of Rs.1,59,33,500/- upon deposit of Rs.1,31,33,015/-towards 45% as down payment along with processing fees, GST and agreement charges to set up a Crushing & Screening Plant 200 TPH and 500 KVA DG set worth Rs.28,97,000/- vide loan contract No.159637,Contract Reference No. NG258586, contract start date 5.6.2018, contract maturity date 5.5.2022. As per repayment schedule the complainant is supposed to pay EMI for total  46 months (200tph-Rs.3,73,050/- for 46 months plus DG set Rs.57,412/- for 36 months). Out of which the complainant has already paid 22 EMI without delay as on date of filing of this complaint.  During Covid-19 Pandemic situation the RBI/Op No. 4 on 27^th March 2020 vide circular No.RBI/2019-20/186 and DOR No.BP.BC.47/21.04.048/2019-20, a three month moratorium period is granted which began from 1^st March 2020. On 15^th May 2020 the complainant received one repayment schedule through email from the office of Op. No.3 where OP No.1 to 3 have unlawfully rescheduled the repayment period from 46 to  49 months though the complainant has been repaying the loan/EMI regularly without any default even during the lock down period of Covid-19 situation . It is contended that OP No.1 to 3 have unlawfully extended the EMI from 46 to  49 month conducted themselves in most reprehensive manner adopting unfair trade practice in order to harass the complainant. It is further averred that, on being asked the OP No.3 mentioned that, it is their official order from the OP No.1 & 2 and that, the complainant is to abide by the reschedule repayment structure otherwise they shall use the blank cheque of the complainant delivered to the op finance company  at the time of sanction of the loan. It is further averred that the complainant is ready & willing to pay the entire EMI up to 46 months as per the repayment schedule issued to him at the time of obtaining the loan out of which he has already paid 22 installments/EMIs as on date of filing of this complaint. It is further submitted that, the Op. No 4, being the governing authority paying no heed and overlooking on the malpractice, criminality and unfair trade practice adopted by such financial institution like Opp. No 1 to 3.
5. During hearing of this case , the learned counsel for the complainant placing repayment details available in the record submits that, as on date the complainant has already paid entire 46 nos. of EMI to the Ops/ SREI Equipment Finance Limited and prayed for an order directing the Ops to issue “No Dues Certificate” in respect to the alleged loan and to release all the collateral securities with the Ops/ SREI Equipment Finance Limited to the complainant. Learned counsel of the complaint further submits that, the averment of the complaint petition are supported by an affidavit of  the complainant to be treated as evidence of the complainant
6. On being notice Op No 4 does not want to contest the case.
7. The OP No.1, 2 & 3 have filed their written version jointly and challenged the maintainability of this complaint submitting that, this complaint is filed under old C.P.Act 1986 and this DCDRF(now DCDRC) lacks jurisdiction;-territorial, pecuniary, subject matter, as well as there is no cause of action to bring this complaint against the answering Ops . It is contended that, the present complaint is neither maintainable in law nor in fact. The complainant is not coming under the definition of “Consumer” as defined under C. P. Act because the relationship between the complainant and Ops/ finance company are that of borrower & lender only as such there is no consumer dispute arises between the parties. There is an Arbitration Clause exists in clause 9.11 of the loan Agreement executed between the complainant & the Ops/ finance company as such this complaint is not maintainable. The  issues raised by the complainant does not fall with the ambit & scope of C.P.Act, so also the complainant has agreed to the Jurisdiction clauses that, any dispute arises shall be adjudicated in proper Court of Law at Kolkata, as such this Consumer Commission has no jurisdiction to entertain this complaint .Further it is contended that, this consumer complaint has filed on 4.6.2020 when old Consumer Protection Act,1986 was in force and as on date of presentation of the complaint this DCDRF (now DCDRC) Kalahandi lacks Pecuniary jurisdiction as in the instant case the cost of the finance asset/machine is Rs.2,89,70,000/-.The the complainant availed loan/financial assistance of Rs.1,59,33,500/-and has paid the down payment, processing fee, GST and agreement charge etc(consideration amount of Rs.1,31,33,015/-)for availing the said financial services which has been categorically admitted by the complainant in sub Para 3 of the complaint petition as such this  Learned Commission has lack Pecuniary Jurisdiction to adjudicate upon the instant consumer complaint is liable to be dismissed with cost. However, the answering Op has admitting the fact that, complainant has to clear the loan dues with interest & other charges in 46 nos. of installment /EMI @ of Rs.4,30,500/- each for 34 nos. and rest 12 nos. of EMI @ of Rs.3,72,200/- per month. The due date of installment was commencement from 15^th July, 2018 and maturity date is fixed on 15.04.2022. Furthermore at the time of delivery of asset to customer on the request of the complainant, for one month moratorium, the monthly payment date was modified from 15^th of each to 5^th of each very next month as per the welcome letter provided to the customer. But subsequently due to increase in SBR from 17.75% PA to 19.75% PA & SPLR from 14.50% PA to 16.50% PA w.e.f. 1^st January, 2019, the Ops/ Company increased the tenure of the loan of the complainant form 46 months to 48 months and revised repayment schedule was supplied to the complainant with forwarding letter on dt.30.3.2019. Similarly again in the year 2020 due to increase in SBR from 19.75% PA to 20.75% PA & SPLR from 14.50% PA to 15.50% PA w.e.f. 1^st January, 2019, the Ops/finance company increased the tenure of the loan of the complainant from 48 months to 49 months and a revised repayment scheduled was supplied to the complainant with a forwarding letter on dt.21.02.2020 and that, such increase of the SBR & SPLR is readily published at the present finance company website. The said revision of repayment schedule done by the Op Company by the above said reason cannot be treated as illegal and arbitrary as they have every power /right to do so under the clause 2.3.5 of terms & condition of the agreement. The alleged repayment schedule was sent through registered post on 21.2.2020 much prior to Covid-19 Pandemic. The revision of number of installment was done vide ALM Committee decision and by subsequent publication in the company website much prior to Covid 19 and since the complainant is well aware about the revised repayment schedule prior to Covid 19 pandemic rather invoked jurisdiction of the Hon’ble Forum to avail benefit of Covid 19 Pandemic by way of misleading on presentation of RBI guideline.  It is further contended that, the ops/SREI Equipment Finance Limited has no branch office in any place within the district of Kalahandi through which it can be said that, they are carrying their business and working for gain within the jurisdiction of the learned forum besides that no  incident or cause of action arose within the territorial jurisdiction of  this Learned Forum, so also the complainant has not impleaded any party who resides or having any branch office or works for gain within the district of Kalahandi. Hence, Hon’ble Forum/Commission has got no territorial jurisdiction to adjudicate upon the instant consumer complaint presented under Old C.P. Act,1986 rather, the regional office of the answering Ops company is situated at Bhubaneswar in the district of Khurdha who looks after  all the business activities of the company in the entire State of Odisha. . It is further contented that, the cost of finance machineries is Rs.2,89,70,000/- and the complaint has purchased the same for commercial use as such the complaint should not be admitted. Ashish Kumar Agrawal, the partner of the complainant firm Basudev Stones, is engaged in various construction and mining business who is also an Income Tax assesses is earning huge income from his other partnership M/s Basudev Foods firms and other business source from which  he is maintaining his family well and he avail the alleged loan only to expend his running business activities and earn more profit from his business and not for his livelihood or self employment excludes from the preview/definition under C. P. Act. It is stated that, the complainant himself has violated the agreement and has not come to the Court in clean hands. It is only due to default/delayed and irregular payment of dues the loan agreement carry additional other due charges & other charges as well which are in accordance to the agreed terms & condition of the agreement vide clause 2.8.4 duly executed by the complainant .Clause 9.8 of the loan agreement provided rights to the answering Ops/ finance company to repossess the asset and to sale it at the best price and to adjust the same against the loan dues. The Ops have neither unlawfully increased the period & nos. of EMI nor there is any deficiency of service or unfair trade practice on their part. The complainant irrevocably agrees and undertakes that, the Ops/finance company has an unfettered right to revise the SBR to reset the future repayment installment playable by the customer to the Ops/ company. The customer shall not raise a dispute in this regard. As the Ops/ Company shall retain such revision right so  also the complainant cannot raise any dispute regarding enhancement of EMI & issuance of said  revised repayment schedule by the present Ops/finance company. In pursuant to the term & condition of the loan agreement and as per the revised repayment schedule the complainant is liable to pay the EMI for the specified amount up to 49 nos. of month ,question of readiness & willingness shown by the complainant to pay the EMIs up to 46 months does not arise at all. There is no cause of action to bring this complaint  as such the complainant is not entitle for any relief as prayed for rather complaint is to be dismissed with heavy cost.
8. Before discussing other facts and issues we feel it proper to decide the case on the point of maintainability of this complaint.
9. The OPs in their written version contended that no document has been supplied to the present Ops which are relied and annexed with the complaint petition but we found nowhere in the order sheet that, the answering Ops have ever asked to supply the copy of document filed by the complainant, so also there was no bar to collect or verify the require documents from the case record during the pendency of this case as such this plea is not admissible .Hence rejected.
10. Law is well settled that, where a person purchased goods or hire services “with a view to using such goods or services as it may be for carrying on any activity on a large scale manufacturing or processing activity for earning of huge profit, he will not be a consumer under Consumer Protection Act “.
11. Here in this case, admittedly the complainant is a registered firm in the name & style of M/s Basudev Stone vide Regd. No.15201700047 of 2017(as revel from the copy of Form-C issued by the Registrar of Firm ,Odisha, Cuttack placed in the record) availed loan of Rs.1,59,33,500/- from the OP No.3 to set up a Crushing & Screening Plant 200 TPH and 500 KVA DG set in its business unit at Karlasoda, PS- Kesinga, Dist-Kalahandi, Odisha is certainly not a large scale manufacturing or processing unit carrying on for huge profit as it  reveals from the balance sheet, profit and loss account statement for the year ended 31^st March, placed in the record which shows that, net profit earned for the year is Rs.10,37,855.98 ,where there the two partners namely Ashish Agrawal(here represented the complainant firm ) and Shri Bijaya Kumar Jain are earning salary of Rs.2,40,000/- each which clearly mean that, the complainant has hired the financial service i.e. loan to run their small venture wherein said two partners have employed themselves in order to earn their livelihood by way of salary, of course may be with the aid  of other laborers or expert operators would not be concluded as being for  “commercial purpose”. Reliance may be placed on the decision of Hon’ble Apex Court in Laxmi Engineering Works Vrs. P.S.G Industrial Institute ,(1995) 3SCC 583 & Paramount Digital Color Lab VRs. Agta India Pvt. Ltd.,(2018) 14 SCC 81.
12. It is observed that, the complainant/partnership firm has hired financial service/availed loan for the benefit of employment of its partners who are earning their livelihood by way of salaries. Livelihood does not mean earning for mere existence rather a comfort to lead a healthy & prosperous life. Hon’ble Supreme Court in Spring Meadows Hospital vrs Harjol Ahluwalia through K.S Ahluwalia, I (1998) C.P.J 1(SC) held that, the person who hires the service for a beneficiary can also be included in the definition of “consumer” under C.P. Act. Though that case was in the context of parent hiring the services of a hospital for their minor child the same principle may also be extended to a case such as the present one where the registered firm/complainant hire financial service /availed loan for the benefit of its partner .Hence, the complainant is entitle to claim against the Ops in this case as a “consumer”.
13. The answering Ops have admitted the fact that SREI Equipment Finance Limited has its registered office at Bhubaneswar in the district of Khurda, who looks after all the business activities of the Ops/Company in the entire State of Odisha which clearly proved that, the Ops have its business activities in the Kalahandi district of Odisha. It is also proved  on admission that, Ops have extended their financial service by way of disbursing loan to the complainant at Karlasoda, PS- Kesinga,Dist- Kalahandi so also it is proved that ,the Ops/financing company has been collecting the loan dues/EMI from the Complainant through the Bank Account of the Complainant vide A/c No.136011100001617 held with the Union Bank of India at Kesinga, Dist. Kalahandi, Odisha  (as it reveals from the account statement of the said account for the period from 20.09.2017 to 20.08.2022 placed in the record). As such we are of our view that, this complaint is well within the territorial jurisdiction of DCDRF (Now DCDRC) Kalahandi.
14. The Ops further submitted that, due to existence of the Arbitration clauses 9.11 and jurisdiction clauses 9.10 of the loan agreement this consumer complaint is not maintainable. In this regard we may relied on the Hon’ble Supreme Court passed in Emaar MGF Land Ltd. Vrs. Aftab Singh-I, (2015) CPJ 5 (SC) where it was laid down that, an arbitration clauses on the agreement does not bar the jurisdiction of the Consumer Fora to entertain complaint.
15. The Consumer Protection Act 1986 as well as new Consumer Protection Act 2019 specifically fixed the territorial jurisdiction to entertain the consumer complaint for settlement as such any agreement fixing jurisdiction to adjudicate dispute between the parties contrary to the statutory provision is not acceptable. Hence, the objection raised by the Ops clauses of arbitration and jurisdiction bars this Commission (was the Forum) from entertaining the complaint is unsustainable.
16. The complainant has prayed to hold that, the OP No.1 to 3 are liable for unfair trade practice in unlawfully rescheduling by enhancing  the period of payment of EMI from 46 number to 49 number which mean that the complainant has aggrieved on the enhancement of 3(three) nos. of EMIs only which are reflected in the annexure- 7 of the complaint petition as well as annexure –C series in  page 56 & 57 of the documents placed in the record  by the Ops along with their written version i.e. revised payment schedule vide EMI serial No.47,due date 5^th June,2022 for an amount of Rs.372200/ and EMI serial No.48, due date 5^th July 2022 for an amount of Rs.3,72200/- and last EMI vide serial number 49 due date 5^th August,2022 for an amount of Rs.47,699/- i.e. total disputed amount is Rs.7,92,099/- only  and there is no dispute over the repayment of entire agreed 46 number of EMI. Further the complainant has prayed for a compensation of Rs.2,00,00o/- only towards mental harassment & agony along with litigation cost of Rs.30,000/- only. As such we are of our view that, claims in the complaint is within the pecuniary Jurisdiction of DCDRF (now DCDRC) ,Kalahandi and there is sufficient cause to bring this complaint claiming deficiency of service and unfair trade practice on the part of the Ops.
17. The complainant being aggrieved upon e-mail received on dt.15.05.2020 with respect to unilateral & unlawful reschedule of repayment structure i.e. enhancement of period & number of EMI from 46 to 49 ignoring the agreed number of 46 EMI saddled  financial burden & mental agony caused the complainant  to present this complaint on 2.6.2020 is found to be in time as prescribed under C. P. Act 1986 as well under new C.P. Act 2019
18. It is the submitted by   the answering OP/SREI Finance Ltd that, due to increase in SBR from 17.75% PA to 19.75% PA and SPLR from 14.50% PA to 16.50% PA w.e.f. 1^st January,2019, the OP Company increased the tenure of the loan of the complainant form 46 months to 48 months and revised repayment schedule was supplied to the complainant with a forwarding letter on dt.30.3.2019. Similarly again in the year 2020, due to increase in SBR from 19.75% PA to 20.75%PA & SPLR from 14.50% PA to 15.50% PA w.e.f. 1^st January 2019, the OP finance company increased the tenure of the loan of the complainant from 48 months to 49 months and a revised repayment schedule was supplied to the complainant with a forwarding letter on dt.21.02.2020 such increase of the SBR &S PLR is readily published at the present finance company website. It is further mentioned that, the Ops/Company compelled to increase the SBR & SPLR keeping in view of increasing of fund market fluctuation and other conditions from time to time, in reference to its meeting held by Asset Liability Management Committee (ALM Committee) time to time, which is readily published at the company website. But the OPS/ SREI Finance Ltd has failed to adduce cogent evidence to substantiate the said averment of the written version. The Ops have also failed to prove that, the complainant has ever assess the website of the company being instructed by the OP Company to be aware of the changing of loan repayment structure by way of enhancing the arrear and number of EMI. Annexure –B of the written version executed by the complainant at the time of availing of the loan on dt. 15.05.2018 but nothing material available on record to hold that subsequent changes in repayment scheduled has been acknowledged by the complainant.
19. There is no iota of evidence available on record that, the Ops/ Company has ever serve the above mentioned forwarding letter dt.30.3.2019 vide annexure –C series of the written version & forwarding letter  dt.30.3.2019 vide annexure –D series of the written version to the complainant at any point of time . So also the contention of the said annexure C & D of the written version has not been proved in the manner as prescribed under C. P. Act. Nothing evidence available in record to hold that, any opportunity of being aware in any manner regarding enhancement of number of EMI & period of repayment has been  given to the complainant.
20. It is found that, the alleged loan agreement paper placed on the record is nothing but a slandered form of contract. Law is well settled that, a term of a Contract will not be final if it shown that, the borrower has no option but to sign on a contract framed by the financer. The contractual term of the loan agreement dt.05.06.2018 are ex-facie one sided, unfair & unreasonable. The incorporation of such one sided clauses in an agreement as claimed by the answering Ops constitute an unfair trade practice as per C.P. Act since it adopt unfair method or practice for the purpose of earning higher rate of interest from the borrower /complainant firm.
21. It can’t be ruled out that, the Complainant/borrower could have preferred to close his loan account with the SREI Equipment Finance Ltd availing loan/ financial assistance from the other bank/financial institution offering reduced/low rate of interest by paying repayment charges to the financer for doing so or could have availed the option of switch over from the higher interest loan to a lower interest loan by paying switch over fee which may be lesser than the prepayment charges , generally switch over fee is taken as percentage of outstanding loan amount .The complainant/borrower is completely at the mercy of the bank who is resourceful party on protection of their interest.
22. Here in this case, the number of EMI payable is unilaterally increased by the bank is proved as such we are of the opinion that there clear deficiency in service & Unfair Trade Practice on the part of the Ops finance company as such there is sufficient cause of action to bring this complaint before this Forum /commission .
23. There is nothing available on the record to hold that, the complainant has given blanks cheque to the OP No. 3 during sanction of the alleged loan as securities of repayment of the same  as such  submission of complainant that, Ops / OPS/ SREI Equipment Finance Ltd  shall use the blank cheque of the complainant is discarded.
24. Having given our thoughtful consideration to the various  pleas raised by the learner counsel for the parties and keeping in view the judgment passed by Hon’ble National Commission and Apex Court there is not only an act of deficiency of service but also it amounts to unfair trade practice on the part of Ops/. SREI Equipment Finance Ltd no doubt caused financial hardship & mental harassment to the complainant need to be compensated by the ops / SREI Equipment Finance Ltd
25. Hence, in the light of above said discussion and settled principle of law this complaint is allowed in part against the OP No.1 to 3 on contest and exparte against the OP No.4 with following orders.

Order

1.  The OP No. 1 to 3 /here the authorities of SREI Equipment Finance Ltd are  directed to issue “no dues certificate” with respect to alleged loan to the complainant without further harassment.
2.  The OP No.4 is directed to monitor the activity of the finance company / here the SREI Equipment Finance Ltd properly ensuring protection of interest of the borrowers like complainant in this case.
3. The above order is to be complied within four week from the date of receiving of this order failing which the SREI Equipment Finance Ltd is liable to pay compensation @  Rs.1,000/- per day to the complainant till  compliance of the order and the same shall be reimburse from the CEO of the said Finance company i.e. SREI Equipment Finance Company Ltd.
4. Pending application if any is disposed of in view of the aforesaid order.

Dictated and corrected by me.

              President

I   agree.

       Member                                            President

Pronounced in open Commission today on this  24^th day of November,2022 under the seal and signature of this Commission.

               The judgment be uploaded in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission. Order accordingly.

       Member                                            President