Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 122/2022
The complainants have instituted this complaint case against the OP for passing direction to the OP to issue NOC in favour of the complainants in respect of the Loan A/C being No. SL1019351 and for restraining the OP from informing the CIBIL (Credit Information Bureau India Limited) in the name of the complainant No. 1 regarding above noted Loan A/C and for awarding that compensation to the tune of Rs. 2,00,000/- and also for passing an order for payment of litigation cost of Rs. 50,000/-.
Fact of this case
Case of the complainant
The case of the complainant which is deciphered from the petition of complaint is that the complainant No. 1 is a bonafide consumer under the OP within the meaning of Consumer Protection Act, 2019 and the complainant No. 1 is the sole proprietor of M/S Lokenath Trading Company and he earns his livelihood from the proprietorship business and the representative of the OP regularly used to make contact with complainant No. 1 over phone for taking a loan through the OP but complainant No. 1 was not interested to take any loan from the OP but the representative of the OP repeatedly requested and ultimately the complainant No. 1 agreed to take loan from OP and the OP disbursed an amount of Rs. 19,61,477 as a loan to complainant No. 1 on 08.12.2017 in the above noted loan A/C and the complainant No. 2 was the guarantor of the said loan. It is alleged that at the time of disbursement of the said loan the OP neither handed over any loan agreement and / or any papers regarding the said loan transaction to the complainant No. 1 in respect of repeated request of the complainant No. 1 nor informed the amount of processing fees and other charges. It is submitted that Chandan Karmakar, Sales Manager of the OP sent one email to the complainant No. 1 and stated that he was total loan amount of Rs. 20,17,134/- and thereafter complainant No. 1 started to pay EMI regularly and on 03.04.2018 the complainant No. 1 had sent one email to the OP requesting him for fore-closer of the said loan A/C and accordingly Sales Manager namely Chandan Karmakar of the OP instructed the complainant No. 1 to pay an amount of Rs. 16,00,000/- at a time for fore-closing the said loan amount and at the time he also assured the complainant No. 1 that thereafter the OP shall issue NOC and accordingly by believing and entrusting the settlement of OP, the complainant No. 1 on that day i.e. on 3.04.2018 paid the said amount of Rs. 16,00,000/- to the A/C of the OP but in spite of the said payment, the said loan A/C has not been fore-closed by the OP and he also did not issue any NOC in favour of the complainant No. 1 which is clearly instances of negligence and deficiency of service on the part of the OP No. 1. It is pointed out thereafter the complainant No. 1 on several times tried to make contact with the Sales Manager of OP No. 1 but the said Sales Manager did not receive any phone call of the complainant No. 1 on 07.07.2018, the complainant No. 1 had sent one email to the OP stating the entire fact of non receiving the phone call and / or non contacting with the complainant No. 1 and also asked the Op to cooperate with him for fore-closing the said Loan A/C but the OP did not pay any heed to the appeal of the complainant No. 1. It is also stated that the complainant No. 1 again on 26.10.2018 sent another email to the OP stating all facts therein and at that time the OP sent one email in reply to the complainant’s email and OP assured the complainant No. 1 that they would inform the complainant No. 1 regarding progress of the said letter but subsequently did not inform regarding the progress of the said letter of fore-closure of the said Loan A/C as well as had not issued any NOC but on the other hand the OP sent some anti-social elements to the house of the complainant No. 1 and they demanded more money from complainant No. 1 and non-fulfillment of the said demanded, they threatened with dire consequences uses filthy languages and such type of the behavior of the persons of the OP, The complainant No. 1 and his family members have suffered mental agony . It is asserted by the complainant No. 1 that he regularly contacted with the OP for processing about the fore-closure of the Loan A/C and also for issuance of NOC but again the OP did not pay any heed but on the other hand on 25.02.2020 the OP further sent letter to pay Rs. 70,000/- for settlement in respect of the above noted Loan A/C in 2 (two) equal installments of amount of Rs. 35,000/- each. It is also the case of the complainants that complainant No. 1 was not agreed to pay the said amount initially as because he has already paid settlement amount previously but the OP threatened the complainant No. 1 by saying that if the complainant No. 1 did not pay the said amount to OP would not issue any NOC and also threatened by saying that they would inform CIBIL so that a default history against the name of the complainant No. 1 could jeopardize his credit rating across the industry and complainant No. 1 being a peace loving person and this only his earning source for earning daily livelihood, he again paid the 1st installment on 27.02.2020 as per settlement letter but subsequently due to illness of the complainant No. 1 he could not pay the 2nd installment and thereafter lock down was started due to Covid 19 all over India and it was not possible for the complainant to pay any amount to the OP. It is also submitted by complainant No. 1 that after payment of said full and final settlement amount, the complainant No. 1 asked the OP to send the NOC in respect of full payment of loan amount and the OP assured the complainant that the said NOC would be sent within 15 days from the date of payment of full settlement amount in official course but ultimately the OP did not sent any NOC and instead of sending NOC the OP had sent one notice through the office of District Legal Service Authority by filing P.L. Case being No. 162921 of 2021 against complainant No. 1 by demanding amount of Rs. 4,07,714/- and according to the said notice on 11.09.2021 the complainant No. 1 appeared before the District Legal Service Authority at City Civil Court and stated all the facts before the official persons of DLSA and official persons after hearing all facts did not entertain the demand of the OP. It is further alleged that instead of sending NOC the OP and his men and agents regularly threatened to the complainant No. 1 to pay more money regarding the above noted Loan A/C and the OP had sent one letter on 14.04.2022 through his Advocate H. Singh and Associates and in the said letter the Op illegally demanded huge amount of Rs. 4,37,088/- from complainant which is arbitrary and OP is not entitled to get the said amount from the complainants. It is also pointed out that on 23.04.2022 the authorized person of the Op further sent one demand legal notice against the loan agreement being No. SL1019351 and illegally demanded an amount of Rs. 1,61,612/- from the complainants and also threatened by saying that they will inform CIBIL. It is further asserted that such type of conduct of OP is clearly indicating that the OP wanted to squeeze money from the complainant by hook and crook with ill motive and bad intention which indicates that the OP has committed gross negligence and deficiency of service. It is also alleged that the OP is a guilty of unfair trade practice and gross negligence and so they are liable to pay compensation to the complainant and there is a bonafide disputes between complainants and OP which may be designed as consumer dispute and for all these reasons the complainants have instituted this case against the OP as per prayer of the complaint petition.
Defence Case - The OP has contested this case by filing W/V where the OP has denied each and every allegations of the complainant which have been raised against the OP in the complaint petition. This specific case of the OP in a nutshell is that this complaint case is not maintainable in its present form and in the eye of law and the complainant has not approached before this District Commission in clean hand and so the complainant is not entitled to get any relief in respect of his prayer highlighted in the complaint petition. As per case of the OP one loan agreement was executed in between the parties and complainant is aware about this matter and if there is any breach of the terms & conditions of the loan agreement it would come under the provisions of Contract Act and for that reason the appropriate Forum is a Civil Court but the complainant instead of approach before this Civil Court has filed this case before this District Commission. It is alleged that the complainant has not paid all EMIs in respect of the Loan A/C and instead of making full payment of the EMI has prayed before the OP for fore-closing the said Loan A/C. As per case of the OP the complainant had secured a loan to the tune of Rs. 20,00,000/- but the complainant has made payment of Rs. 18,87,666/- and it has been admitted by the complainant himself that an amount of Rs. 1,18,366/- is still lying due. It is also submitted by the OP that the complainant has approached before the OP for taking loan and the terms & conditions of the loan agreement is clearly depicting this matter and say the allegations of the complainant that OP approached to the complainant for taking loan is outrightly false statement according to the submission of the OP. This case is not maintainable in favour of the decision of Hon’ble Apex Court which is reported in
Alok Shanker Pandey Vs. Union of India & Ors. 2007 (3) SCC 545 .
It is also submitted that according to the above noted decision of the Hon’ble Apex Court the OPs are entitled to get interest and penal charges from the complainant . It is pointed out by the OP that the complainant No. 1 has secured a loan facility as business loan without any collateral security . It is also asserted by the Op that the complainant No. 1 / borrower has secured and insured loan from the OP which is required to be repaid in 12 EMI but after the payment 4th EMI the complainant No. 1 prayed fore-closure and has repaid amount of Rs. 16,00,000/-. It is further alleged that there is no cause of action for filing this case by the complainant and so this case is not maintainable. For all these reasons the OP of this case has prayed before this District Commission for dismissing this case with heavy cost.
Framing of issues
On the basis of the pleadings of parties this District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points of consideration :-
(i) Is this case maintainable in its present form and in the eye of law?
(ii) Whether this District Commission has jurisdiction to try this case?
(iii) Are the complainants consumer under the OP or not?
(iv) Whether the complainants have any cause of action for filing this case ?
(v) Whether the complainant is entitled to get an award directing the OP to NOC in favour of the complainants in respect of above noted Loan A/C and also entitled to get an award restraining OP from informing CIBIL and whether the complainants are entitled to get compensation and litigation cost from this case or not?
(vi) To what other relief / reliefs are the complainants entitled to get in this case?
Evidence on record
The complainants in order to prove their case has examined the complainant No. 1 and against the said evidence the Op has failed to file any interrogatories. The OP has not filed any evidence on record as the said opportunity was closed as per order of this District Commission.
Argument highlighted by the parties
The complainant side has filed Brief Notes on Argument in this case. the Op also has filed Brief Notes on Argument . In addition to the submission of Brief Notes on Argument Ld. Advocates of the complainant side and OP also have highlighted their verbal submission.
Decision with reasons
The questions and / or issues involved in the above noted points of consideration are interlinked and / or interconnected with one another and for that reason and also for the interest of convenience of discussion all the above noted points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of arriving at just and proper decision and also for the interest of proper and complete adjudication of this case there is urgent necessity of making scrutiny of the material of this case record at the same time there is also urgency of making examination of the evidence on record.
In this regard this District Commission after going through the material of this case record finds that the complainants have instituted this complaint case jointly without obtaining permission from this District Commission u/s 35 (1) ( C ) of the Consumer Protection Act, 2019. As per provisions of Section 35 (1) ( C ) of the Consumer Protection Act, 2019 there is urgent necessity of obtaining permission from this District Commission for filing any complaint on joint liability. The complainants due to the reason best known to them have not followed this provisions of law. This matter is clearly indicating that the complaint case has not been filed as per provisions of law and so this complaint case is found not maintainable in its present form and in the eye of law.
Moreover, from the materials of this case record as well as from the evidence on record it is found that the complainant has taken the loan from OP for the purpose of running their business “M/S Lokenath Trading Company” it is admitted fact that running one business by the complainants is a commercial purpose. In this regard the complainants have adopted the plea that they running said business for earning their livelihood. In this regard, the complainant No. 1 has adduced evidence. But fact remains that the said part of evidence given by complainant No. 1 has not been corroborated by any other witness to prove that the complainants are running the above noted business for earning their livelihood . In this regard it is also important to note that the complainants have not produce any cogent document such as Income Tax Return, Sales Tax Return, GST Return to establish the fact that the complainants are running above noted business for earning their livelihood. In this regard the decision of the Hon’ble Apex Court which is passed in the case of
SHRIKANT G. MANTRI VS. PUNJAB NATIONAL BANK and it is reported in II (2022) CPJ 9 (SC) in view of the above noted decision of Hon’ble Apex Court in order to come within the meaning of “Consumer” as defined in the Consumer Protection Act, he will have to establish that service where availed exclusively for purposes of earning livelihood by means of self-employment. In this instant case the complainants have failed to establish the fact that they are running the above noted business for earning their livelihood for self-employment by way of producing cogent and / or believable documentary evidence. So, this District Commission is of the view that the complainants are running the above noted business for commercial purpose and so the complainants are not coming under the purview of the definition of “Consumer” as per provisions of Consumer Protection Act, 2019.
A cumulative consideration of the above noted discussion goes to show that the complainant is not a consumer under the OPs and this complaint case is not maintainable in its present form and in the eye of law.
Moreover, it is revealed from the material of this case record that the complainants have entered into loan agreement with the OPs and if there is any violation of the terms & conditions of loan agreement the complainants had the liberty of approaching before the Ld. Civil Court as per provisions of Section 9 of the Civil Procedure Code. Instead of doing so the complainants have chosen the wrong forum.
Under this position this District Commission has no other alternative to return the complaint petition to the complainants for filing the same before the appropriate forum.
In the result , it is accordingly,
ORDERED
That this Complaint Case being No. 122/2022 be and the same is found not maintainable and so it is dismissed on contest.
No order is passed as to cost.
Let the complaint petition be returned to the complainant with liberty to file the same before the appropriate forum.
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment / final order be uploaded in the official website of this District Commission.
Dictated & corrected by me
President
