OP files hazira through their lawyer. Complainant is absent without any step. Today is fixed for delivery of judgement. Judgement is delivered ibn open court are kept in separate sheet as follows:
Sri A.K. Bhattacharyya, President
In brief the complainant’s case is that the complainant applied for a loan accommodation for commercial purposes on 28/08/11 before opposite party in order to purchase a heavy goods vehicle which was sanctioned for Rs. 20,16,124.00/- on 22/09/11 by the opposite party with interest payable @ 4% per annum over Allahabad Bank’s rate. The Opposite Party’s rate of interest as on the date being 10.7% per annum, the effective rate on the date was @14.75%, repayable of loan by 84 monthly installments at the rate of Rs. 37,432 as E.M.I and the due date of 1st installment was on January 2012. The complainant used to make repayments upto his the then capacity and capability towards the said sanctioned loan which is mentioned herein below:-
From 31/02/11 to 31/03/12 was Rs. 1,21,886.00, from 26/05/12 to 31/12/12 was Rs. 1,92,440.00, from 30/01/13 to 20/09/13 was Rs. 3,10,000.00 and from 28/09/13 to 08/10/14 as 3,75,753.00, in total Rs. 10,00,079 for 26 installments of which Rs. 9,73,232 towards principal amount and rest Rs. 36,847 towards interest.
The Opposite Party did not provide any available relief towards credit guarantee under the scheme of Credit Guarantee Fund for Micro and Small Enterprises.
The Complainant further stated that the opposite party has made the statement of account of the complainant by irregular process by not crediting any amount paid by him in respect of the principal amount. The entire amount deposited by the complainant for repayment of the loan amount has been credited in the interest account illegally. The Opposite Party now is claiming Rs. 20,16,124/- as principal amount along with interest @ 14.75% per annum. The Opposite Party also threatened the complainant to seize the said vehicle on failure to make repayment of the aforesaid amounts made there in.
The Opposite Party has contested the instant consumer case by filing written version and written notes of argument, where in all the material allegations of the complainant have been denied. It is stated in his written version that the instant consumer case is barred by limitation, not maintainable under Consumer Protection Act, that the complainant did not repay the installments amount regularly and repayment of installments were less than the actual installment amount for which the outstanding balance of loan amount has not been reduced. The complainant did not pay the insurance premium of the vehicle as per sanctioned letter for which the opposite party had to debit his loan A/C on 22/09/11, 08/09/12 and 07/09/13 amounting to Rs. 56,568, Rs. 51,940 and Rs. 56,753 respectively towards Insurance Premium of the vehicle according to verbal instruction of the complainant and due to non-payment of installments amount in due course (date), the complainant’s loan account was declared as NPA and the Opposite Party served notice u/s 13(2) read with section 13(13) under SARFASEI Act, 2002 against the complainant, hence the Opposite Party has prayed for dismissal of this instant case.
Points for determination:
- Whether the instant Consumer Case is maintainable under the provisions of Consumer Protection Act?
- Whether this case is barred by limitation?
- Whether the complainant is entitled to any relief as sought for?
Decisions with reasons
Points no. 1 to 3
All the above points are taken up together for consideration. We heard argument of both sides at length and perused the pleadings of both sides, their written notes of arguments and the documents (photocopies) on record.
Undisputedly, the complainant took loan of Rs. 20,16,124 for commercial purpose from Opposite Party for purchasing a heavy goods vehicle on condition to repay the loan amount along with interest by 84 installments @ Rs. 37,432 per month as E.M.I. with effect from the month of January 2011.
It appears from the documents (photocopies) on record that the complainant did not repay the amount of installments regularly on due dates as per condition of repayment of the amount with interest. Para 8 of the complaint says that the complainant used to make repayment upto his the then capacity and capability. There is no specific statement in the complaint that he repaid the amount of installments on due date. This indicates that there is irregularity to repay the installment amount.
According to averment made in para 16 of the complaint, the cause of action has arisen on 12/09/11 and subsequent dates from 31/12/11 to 08/10/2014. But the reason for cause of action arose on 12/09/11 and 31/12/11 has not been given specifically by the complainant in the complaint whereas the loan amount Rs. 20,16,124/- was sanctioned by the Opposite Party on 22/09/11.
If, for the sake of argument, it is assumed that the cause of action was arisen initially on 12/09/11. Then the question arises as to how such cause of action arose on 12/09/11 as stated by the complainant, can be continued upto 08/10/2014 because there is no written correspondence in between the complainant and Opposite Party and material on record to show that initial cause of action arose on 12/09/11, has been continued upto 08/10/14. No explanation was given by the complainant for such delay in filing the complaint after expiry of two years from the date of cause of action arose on 12/09/11, as alleged.
In our considered view, therefore this case is barred by limitation as provided under section 24A of Consumer Protection Act, 1986.
Admittedly the complainant took the said loan amount of Rs. 20,16,124 from the Opposite Party for commercial purpose in order to purchase a heavy goods vehicle and he purchased the said vehicle (under registration no. WB – 41F/5323). But no where in the complaint it has been stated that he purchased the said vehicle exclusively for the purposes of earning his livelihood by means of self-employment. As such, the Complainant is not a Consumer under provisions of Consumer Protection Act, 1986. Therefore, in our view, the instant consumer case is not maintainable under Consumer Protection Act, 1986.
For the reasons and findings as discussed above, we feel that the complainant is not entitled to any relief as sought for. The points no. 1, 2 and 3, are thus, disposed of.
In the result, the instant consumer case is liable for dismissal.
Hence, it is,
Ordered
that instant Consumer Case being no. 06/2015 be and the same is dismissed on contest against the Opposite Party without any cost.
