Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking release of documents kept with the opposite parties as security for the loan obtained by him; Rs.5,00,000/- towards mental agony and loss besides costs.

2.    In brief the averments of the complaint are these:

          The complainant was proprietor of AL-Ameen Cotton Industries and also represented M/s Himalaya Cotton Mill, Chilakaluripet.   The complainant deposited title deeds relating to properties which stood in his name and the name of his wife, brother-in-law and cousin sister along with link documents to the 1^st opposite party under a mortgage and obtained loan from it.   The complainant could not repay the amount as sustained loss in business.   The opposite parties filed OA.59/05 and OA.124/05 before the Debt Recovery Tribunal, Visakhapatnam and brought pressure on the complainant with a threat of disposal of the mortgaged properties.   The complainant discharged the said loan under OTS scheme.   After payment of full amount the opposite parties herein filed memo on 17-11-11 before the Recovery Officer, DRT, Visakhapatnam stating that the complainant paid dues in full and final settlement of the claim.   The recovery proceedings before the DRT, Visakhapatnam had been stopped.   The complainant in order to discharge the loan borrowed amounts for huge interest from 3^rd parties.   The opposite parties  returned some title deeds only and kept with them a) Registered sale deed dated 08-11-98 in favour of the name of complainant b) Registered sale deed dated 08-03-99 in the name of complainant’s wife c) Registered sale deed bearing No.8033/98, dated 05-11-98 d) Registered sale deed bearing No.1515/98, dated 04-05-98 e) Registered sale deed bearing No.557/99, dated 08-03-99 and f) Registered sale deed bearing No.560/99, dated 08-03-99.  In spite of repeated demands and notices dated 27-04-12 and 30-04-12 the opposite parties failed to return the above documents even after discharging the loan. The opposite parties though received notice kept quite.  The complainant and his wife sold property to 3^rd parties which stood in their name in order to clear their debt due to the opposite parties.  The above conduct of the opposite parties amounted to deficiency of service and on account of that the complainant suffered a lot by paying huge interest to his creditors besides mental agony.  The complainant estimated the same at Rs.5,00,000/-.   The complaint therefore be allowed.  

3.  The 2^nd opposite party remained exparte.

4.   The contention of the 1^st opposite party in brief is thus:

  The opposite party filed OA 59 of 2005 and 124 of 2005 before the Debt Recovery Tribunal, Visakhapatnam against the complainant.  The recovery officer of DRT at Visakhapatnam sold two properties from out of four properties pertaining to the loan of M/s Himalaya Cotton Mills.   Remaining properties pertaining to AL-Ameen Cotton Industries could not be auctioned as the recovery office of DRT, Visakhapatnam received objections from Wakf–Board claiming title. The chief executive officer of AP State Wakf–Board on 22-11-10 addressed a letter to the recovery officer, DRT, Visakhapatnam and requested him to stop the auction of Wakf properties.   The recovery officer, DRT, Visakhapatnam therefore could not auction the properties objected by the Wakf-Board.  The Collector, Guntur district directed action against the concerned registration department officials for registering wakf properties.   The opposite parties through Wakf-Board learnt that as many as eight properties mortgaged to them by the complainant are wakf properties.  The mortgagors played fraud both on the bank as well as on the Wakf-Board.  On a private complaint the Lokayukt directed the Collector, Guntur district to take action against the persons responsible for creation of mortgage and closed the matter.   The RBI through head office directed the opposite parties to lodge a complaint before the concerned police. The complaint is bad for              mis-joinder of 2^nd opposite party.  The complainant cannot seek return of documents unless and until the enquiry in respect of title deeds relating to survey No.8/1 is completed and the truth is ascertained.   The opposite parties did not commit any deficiency of service.                   The complaint therefore be dismissed.

5.  Exs.A-1 to A-7 on behalf of the complainant and Exs.B-1 to B-6 on behalf of 1^st opposite party were marked.

6.  Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. Whether the complainant is a consumer as defined under the Consumer Protection Act?
4. To what relief?

7.   Undisputed facts in this case are these:

          a. The complainant obtained loan from the 1^st opposite party for                        his business as proprietor of M/s AL-Ameen Industries and                     representing M/s Himalaya Cotton Mill.

          b. The complainant deposited title deeds of him and his                            relatives for obtaining loan.

        c. The 1^st opposite party filed OA.59/05 and 124/05 before the                   Debt Recovery Tribunal and obtained orders.

          d. The complainant settled the loan of the opposite party under               OTS Scheme (Ex.A-3 & A-4) and got the attachment orders                     withdrawn (Exs.A-1 & A-2).

        e. The complainant issued notice to the 1^st opposite party                          (Exs.A-5 to A-7).  

8.   POINTS 1 & 2:-    Since the complainant discharged the loan he is entitled for return of the documents from the 1^st opposite party which were kept as security.   The contention of the opposite parties regarding title in the subject documents is in dispute in view of the orders of Lokayuktha dated 18-03-11 in complaint No.2092/2010/B1 (Ex.B-2) and the letter addressed by the Collector and District Magistrate, Guntur dated 15-03-2011 in RC.No.112/2011/E4 (Ex.B-1) to the Deputy Registrar, Institution of Andhra Pradesh Lokayukth (Ex.B-1) and proceedings of the Collector and District Magistrate, Guntur dated 30-04-2011 in D.Dis.No.112/2011/E4 and as such they cannot be returned.   It is not the contention of the opposite parties that A.P. Wakf Board initiated proceedings against the complainant both in civil and criminal to establish the fraud said to have been committed by the complainant. Returning documents to the complainant in no way affect title of the parties.  The contention of the opposite parties  that complainant may not be available for investigation by the concerned authority is not convincing because the complainant can even now abstain from attending before the competent authority if he really committed fraud. In Exs.B-1 to B-3 the authorities did not restrain the complainant from returning the documents to the complainant.  The 1^st opposite party did not mention in its version when he gave Ex.B-6 report to the Inspector of Police, Chilakaluripet.   But the 1^st opposite party in its affidavit mentioned that the bank has launched FIR before the SHO, Chilakaluripet on              15-11-2012 i.e., after filing this complaint.   Certainly not returning the documents to the complainant by the opposite parties even after discharge of loan amounted to deficiency of service as rightly contended by the complainant.  The said conduct on behalf of the opposite parties certainly could have caused mental agony and harassment to the complainant and he is entitled to compensation.   We therefore answer these points in favour of the complainant.

9.  POINT No.3:-  The complainant in para 3 of his complaint mentioned the following:

“The complainant submits that he was proprietor of            AL-Ameen Cotton Industries and so also representing                            M/s Himalaya Cotton Mills, Chilakaluripet and that the complainant mortgaged his properties stands in his name and in the name of his wife, brother-in-law and cousin sister along with its link documents to the 1^st opposite party Bank and got sanctioned loan amount from them and as he sustained loss in his business the opposite parties filed Original Applications before Debts Recovery Tribunal, Visakhapatnam under O.A.No.59/05 and 124/05 and made the complainant much harassment and due to the pressure that they will sell away all of his properties and under the said threat the complainant went for OTS proposal and accordingly the opposite parties agreed for compromise and informed the complainant to pay an amount of Rs.60,00,000/- for settlement of both the accounts and further the opposite parties  collected the said amount and to that effect the opposite parties  issued a letter dt.30-06-2011 stating that all the dues has been paid and the accounts of the complainant were fully settled”.

10.   The complainant in his affidavit mentioned the following:

“I submit that I am the proprietor of AL-Ameen Cotton Industries and so also representing M/s Himalaya Cotton Mills, Chilakaluripet and that I mortgaged my properties stands in my name and in the names of my wife, brother-in-law and cousin sister along with its link documents to the                   1^st opposite party Bank and got sanctioned loan amount from them and as I sustained loss in his business the opposite parties filed Original Applications before Debts Recovery Tribunal, Visakhapatnam under O.A.No.59/05 and 124/05 and I was much harassment and due to the pressure that they will sell away all of my properties and under the said threat I went for OTS proposal and accordingly the opposite parties agreed for compromise and informed me to pay an amount of Rs.60,00,000/- for settlement of both the accounts and further the opposite parties collected the said amount and to that effect the opposite parties issued a letter                 dt.30-06-2011 stating that all the dues has been paid and my accounts were fully settled”.

11. The registry did not raise the objection regarding the maintainability of the complaint on that aspect.  The contending 1^st opposite party also did not contend that the complainant is not a consumer under the purview of Consumer Protection Act.   That does not in any way restrain this Forum in our considered opinion to consider the same on the maintainability of complaint on the above aspect while disposing off the case on merits.  The averments of the complaint as well as complainant’s affidavit as extracted supra clearly disclosed that the complainant availed the services of the 1^st opposite party for commercial purpose. 

12. In Economic Transport Organisation vs. Charan Spinning Mills (P) Limited and another 2010 II CPR 181 (SC)(FB) = 2010 CTJ 361 (SC) held:

         Section 2 (1) (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’.   After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases.   But the said amendment will not apply to complaints filed before the amendment.

13.   In Smt Sushma Goel vs. Punjab National Bank 2011 (2) CPR 376 (NC) it was held:

         “From this and the evidence produced on behalf of the complainant before the fora below, it is abundantly clear that the entire matter in the complaint filed by Smt Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that:

“Revisionist is engaged in business of the share trading and is an authorized agent of M/s Bonanza Portfolio Limited (herein referred to as “company”) a company incorporated under Companies Act 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.”

By this admission, the complaint will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, as amended in 2002.  In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986.   Therefore, in our view, the State Consumer Disputes Redressal Commission, Uttarakand has rightly rejected the Consumer complaint filed by the Revision Petitioner”.

14.   Taking a clue from the above decisions, we are of the considered opinion that the complainant does not fall under the definition of consumer as defined under Section 2(1)(d)(ii) of the Consumer Protection Act and as such the complaint is not maintainable.                       We therefore answer this point against the complainant.

15.  POINT No.4:-   In view of findings on point No.3, the complaint is dismissed without costs.

          Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 19^th of December, 2012.

          MEMBER                                                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For Opposite Party  :

                                                                                                PRESIDENT