FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed the petition of complainant U/S 35 (Clause 1 of the CP Act, 2019).
The fact of the case is in a nutshell is that being a resident of Berhampore, Murshidabd the complainant used to run his business of purchasing and selling of second hand car under the name and style of “M/S Mandal Mandal Tractor” having registered address at Vill. Raghunathtala, PS. Berhampore, Dist. Murshidabad, Pin-742165. It is further stated by the complainant in his petition of complaint that sometime in the month of October, 2016 the OP Bank came and approached him and canvassing for taking car loan. The representative that is the man of the OP-2 bank was sanctioning the tracktor and farm equipment loan promptly. The rate of interest of which was low.
Being convinced with the proposal of the OPs, the complainant entered into an agreement for tractor and farm equipment loan bearing loan A/c Non TFE 4692834 Relationship No. 200215276, Loan amount of Rs.3,70,843/- only and loan repayment mode was non pdc, loan term of 42 months and the starting date of loan repayment date was 10.12.2016. The loan agreement was executed and entered into by and between the representative of the OP bank and the brother of the complainant as co-borrower and the complainant herein. At the time of execution of the loan agreement as mentioned above, some post dated cheques were taken by the bank from the complainant as security. After getting loan the complainant went on paying the installment regularly to the OP bank. Being a diabetic patient the complainant got frequently bed ridden as per doctor’s advice. As a result he could not be able to repay the loan amount regularly on medical ground. The medical certificate is annexed as Annexure-A.
It is further stated by the complainant that in the meantime he repaid the entire loan amount to the OPs which is covering the cheque amount before 29.02.2020 and also before maturity of loan amount i.e. 10.05.2020. The OP bank issued receipt dated 29.09.2020 to the complainant and also served a summon along with a copy of complaint petition U/S 138 of N.I. Act. The photocopy of receipt is annexed as Annexure B. The date of appearance of the criminal proceeding U/S 138 of N.I. Act was fixed on 29.11.2019 before the Ld. 10th Metropolitan Magistrate, Kolkata but the complainant was under impression that as he has already repaid the entire loan amount then the bank / OP bank will withdraw the complaint U/S 138 of N.I. Act. From the next statement dated 03.03.2020 it is found that the bank has no claim against the loan A/c of the complainant. The photocopy of the same is annexed as Annexure C. But U/S 138 of N.I. Act the complainant was arrested on 25.03.2020 at about 2.30 a.m. by the Berhampore Police, Murshidabad on the strength of W/A issued by 10th Metropolitan Magistrate, Kolkata in connection with CS No. 51037 of 2019 and after 28 days he was released on parole due to pandemic situation and subsequently he surrender before the Metropolitan Magistrate on 10.07.2020 and obtained bail.
It is alleged by the complainant when the borrower repaid all the loan amount including dishonored amount within date of maturity of loan A/c and any case is filed by the bank in that event it is the duty of the bank to withdraw the case at the earliest to receive the amount including the dishonored cheque amount of Rs.46,470/- only. But the OP bank did not do that rather the complainant was arrested and he lost his social prestige goodwill of business due to OP bank for which the instant case is filed by the complainant with a direction to the OPs to pay a sum of Rs. 30,00,000/- as compensation for loss of social prestige and further Rs. 20,00,000/- for mental pain and agony along with litigation cost of Rs. 50,000/-.
The OP-1 and 2 have contested the claim application by filing WV denying all the materials allegation leveled against them.
The name of the OP-3 has been expunged from the cause title of the petition of complaint by this commission vide order dated 18.12.2020.
The One M Siva Prasad Nair being the authorized representative of the OP-2 has filed the WV by denying all the material allegations leveled against them in the petition of complaint
It is submitted by the OPs that it is baseless, and the complainant did not disclose the materials facts in the petition of complaint.
The OPs further stated in their WV that the complainant is not a consumer at all.
It is further stated by the OPs that being approached by the complainant and after being well conversant with the terms and conditions of availing loan from the OPs, the complainant voluntarily and concisely entered into an agreement namely Loan cum Grantee Agreement on 19 Oct, 2016 vide No. TFE4692834 which was executed at the office of the OP-2 at Kolkata and the said agreement the OP-2 described as leander and the complainant was described as borrower wherein one Manoj Mondal stood as co-borrower and pursuant to said agreement a sum of Rs. 3,70,843/- was disbursed as loan in favour of the agreement for the purpose of purchasing the vehicle in question being register No. as WB-57C-4746.
It is further stated by the OPs that in the said loan agreement, it was agreed by the complainant that he will pay off the loan amount along with interest by way of 42 consecutive monthly installments @ Rs. 11,830/- commencing on and from 10th Dec, 2016.
It is further alleged by the OPs that after getting possession of subject vehicle, the complainant failed and neglected to pay the installments as per agreement and even on repeated reminder one of the cheques which was issued by the complainant was dishonored. Accordingly, notice was issued by the OP-2/Bank upon the complainant. The complainant failed and neglected to make the payment of the amount covering under the said dishonored cheque.
As a result, court proceedings was initiated under section 138 N.I. Act before the Ld. Metropolitan Magistrate Court, which was registered number as CS51037 of 2019 and untimely, the W/A was issued against the complainant and subsequently, he was arrested by Berhampore PS in connection with CS51037 of 2019.
It is also alleged by the OPs that the complainant admittedly running the business of purchasing and selling of second hand car under the name and style “Mondal and Modnal Tractor” as such complainant availed the loan for commercial purpose. So, he should not come as a consumer as per CP Act, 1986.
It is further case of the OPs that on 29 Feb, 2020, the complainant was well aware of about proceedings under section 138 N.I. Act but he did not take measure.
As a result, he was arrested. So, in the event, the OPs have no deficiency in service on their part. It is also stated by the OPs that the complainant has no cause of action to file this case. Thus, the same is liable to be dismissed.
In view of the fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the materials as well as evidence on record as adduced by the parties to this case. It is revealed that this commission/forum has got pecuniary as well territorial jurisdiction to try this case and the complainant filed the case within the period of limitation.
Now let us see, whether the complainant is a consumer within the ambit of CP Act, 1986 or not and whether the complainant had any cause of action to file this case?
On careful perusal of the section 2 (d) (i), of CP Act 1986, wherein the word “Consumer ” has been defined and it appears that the complainant admittedly is running his business under the name and style “M/s Mondal and Mondal Trackter” for purchasing and selling second hand car and it is also admitted fact that he took the loan from the OP-2/Bank amounting to Rs. 3,70,847/- only for purchasing the subject vehicle loan account No. TFE4692834, Customer Relationship No. 200215276 and he will repay the entire loan amount in consecutive 42 monthly installments.
From which, it is crystal clear the complainant took the loan from the OP-2/Bank for commercial purpose and he used to run his business i.e. M/s Mondal and Mondal tractor for resale or for any commercial purpose which does not include within the meaning of “Consumer” as per CP Act, 1986.
In order to establish the case that he is a consumer. The complainant cited several case laws.
The commission/forum has gone through those case laws but it has no application in the present case because the fact and circumstances of this case is something different from those case laws.
In view of discussion made above, it is held by this commission/forum that the complainant cannot be considered as a consumer within the ambit of section 2 (d) (i) of CP Act, 1986. Moreover, it is admitted fact that the complainant issued some cheque for security purpose of the subject loan and he defaulted to pay the installments in time. The OP-2/bank tried to encash those security cheques out of which one was dishonored then the OP-2/bank take proper measure of due course of law and lodged a complaint U/s 138 of N.I. Act after issuing notice upon the complainant.
The complainant was well known about the proceeding of 138 of N.I. Act but he did not feel any urge to appear before concerned Ld. Metropolitan Magistrate, Kolkata and to get bail . He stated that in the meantime during pendency of that proceeding U/s 138 of N.I. Act, the complainant paid the entire loan amount to the OP-2/bank but he did not appear Ld. Metropolitan Magistrate, Kolkata to face the proceedings and to get bail.
As a result , W/A was issued against him and he was arrested which is the cause of filing of this case before this commission/forum. The commission/ forum is surprised to get the petition of complaint because it is not subject of consumer commission/ forum to determine the issue when the complainant is not a consumer within the ambit of CP, Act 1986. So, the commission/forum is observed that the complainant has got no relief before the commission/forum. He can get relief if any before the proper forum which is not a consumer forum/commission.
In view of discussion made above, this forum/commission is of opinion that the complainant is not a consumer under the section of 2 (d) (i) of CP, Act, 1986 and he had not cause of action to file this case and subject of this case is not a tenable to get relief from any consumer forum /commission .
Under such circumstances, question of deficiency in service on the part of the OPs or question of getting compensation from OPs does not arise at all.
Thus, it is opined by this forum/commission that the complainant is not a consumer at all and he is measurably failure to prove his case and is not entitled to get relief from this forum /commission.
Hence,
Ordered
that the case be and the same is dismissed on contest without any cost.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
