IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of April, 2016
Filed on 05.11.2012
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.381/2012
between
Complainants:- Opposite Party:-
- Smt. Jancy Thomas The Manager
W/o Thomas Joseph Federal Bank Ltd.
Lemon Villa, CMC – 27 Mararikkulam Branch
Cherthala P.O. Cherthala Taluk
Cherthala Taluk (By Adv. Cheriyan Kuruvila)
- Sri. Thomas Joseph
S/o Joseph -do-
(By Adv. D. Jayasree)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The first complainant was the Proprietrix of Snow White Launders and Drycleaners, CMC – 24, Cherthala. The second complainant is the husband of first complainant. The first complainant had availed a loan in the name of her business concern for purchasing a goods carrier vehicle Ace of Tata make. The complainants and their family were living by the income derived from plying the aforesaid vehicle for the first complainant’s business concern and the vehicle was used exclusively for the complainant’s business concern and the vehicle was used exclusively for the purpose of earning the first complainant’s livelihood by means of self employment. The first complainant has no other job or income and she was completely depending upon the income derived from plying the vehicle for her business concern. The above said vehicle loan went off due and the opposite party had issued notice directing the first complainant to close balance amount. The complainants visited the opposite party for settling the account but the opposite party was reluctant to settle the account and did not allow the complainants to remit the balance due, stating that the complainants have to close their account with Federal Bank Ltd., Thankey Branch. Due to the illegal and ill motivate act of the opposite party, the complainants could not sell the vehicle bearing Reg. No. KL-32/755. The opposite party deliberately withheld the ‘No Objection Certificate’. The authority insisted to produce “No objection certificate for the issuance of duplicate of Registration certificate. The first complainant hired vehicle for the business concern and spent Rs.700/- per day towards rent. The complainants approached the opposite party on several occasions and requested for the issuance of certificate of release of hypothecation. The opposite party informed that the certificate would be issued only if the dues in the car loan availed by the first complainant was cleared. The complainants struggled hard to raise fund for settling the account with Federal Bank, Thankey Branch and the account was settled in March 2012, if the opposite party acted legally and in accordance with the request of the complainants. The first complainant has issued lawyer’s notice to the opposite party on 13.2.2012 and accepted the notice but neither reply so far. And the first complainant has directly issued notice dated 24.2.2012 to the opposite party narrating all the pathetic lights of the complainants. The acts of the opposite party are illegal, ill motive, ultra wires and not in good faith. The acts of the opposite party have caused mental agony, inconvenience, frustration, disgrace, loss of business, loss of vehicle etc., to the complainants and the complainants are entitled to get compensation of Rs.8 lakhs towards the same. Alleging deficiency in service on the part of the opposite party, the complaint is filed.
2. The version of the opposite party is as follows:-
The complaint is not maintainable. Since the loan was availed in the name of the business firm of the first complainant, the complaint ought to have been instituted in the name of her firm. The institution of the complaint by the complainants in their individual capacity pertaining to a loan granted in the name of ‘Snow White Laundries and Dry Cleaners’ is bad, not maintainable and is liable to be dismissed. Her version that the vehicle was used exclusively for earning her livelihood by self-employment is not acceptable and tolerable to conclude that she is a consumer as defined under the Act. The opposite party bank has sanctioned and disbursed a loan for Rs.2 lakhs on 7.8.2006 to the complainants in the name of their firm through its branch at Mararikkulam and the loan repayable with interest in monthly installments. As per the terms and conditions of the agreement executed in favour of the bank the vehicle shall remain hypothecated to the bank as security for the payments and the money due to the bank by the borrower of the said loan and as security for the payment of all indebtedness and liabilities of all or any of the borrowers. The complainants availed another loan from bank through its Thanky branch for the purchase of Hyundai Getz car. The liability of the complainants in that loan account was Rs.3,65,000/-. Whether it is a loan from the Mararikkulam branch or the Thanky branch or any other branch, it would be treated as a loan transaction with the Federal Bank Ltd. and not a loan transaction with the particular branch from where the cash was disbursed. The opposite party bank has with held the vehicle hypothecated at the branch at Mararikkulam in exercise of the bankers general lien and it is not an illegal act as alleged in the complaint. The allegation that complainant could not sell the vehicle because of the acts of the bank is not true. There is no dereliction of duty or service deficiency from the part of the bank in dealing with loan transaction of the complainant.
3. The second complainant was examined as PW1 and documents produced were marked as Exts.A1 to A4. The first complainant was examined as PW2. The documents produced were
marked as Exts.A5 to A10. The opposite party was examined as RW1. Documents produced were marked Exts.B1 and B2.
4. The points that arose for consideration are as follows:-
1) Whether the complaint is maintainable?
2) Whether there is any deficiency in service on the side of the opposite party?
3) If so the reliefs and costs?
5. It is an admitted fact that the first complainant had availed a loan in the name of her business concern for purchasing a goods carrier vehicle. According to the opposite party one who buys goods or hires or availed services for commercial purposes is not a consumer. While cross examining the PW1 she admitted that the loan was taken in the name of business concern ‘Snow White Launders Dry Cleaners’ and it is a proprietorship firm doing the business. While cross examining the PW2 she stated that the loan was taken for purchasing the good vehicle. Relying the decision of Hon’ble Supreme Court in Lekshmi Engineering Works Vs. R.S.G. Industrial Institute, the counsel of the opposite party argued that the complainant is not a consumer within the meaning of Section 2 (d) 1 of the Consumer Protection Act. In this case, the complainant purchased the vehicle for business purpose and the loan is taken in the name of the proprietorship firm. While cross examining the PW1 first she admitted that business started in the year 2002 and there were 12 employees also. Hence we are of opinion that the complainant is not a consumer.
6. Points 2 and 3:- According to the complainant when the vehicle loan went off due opposite party issued notice to the first complainant, directing the first complainant to close the entire amount. Even though they are willing to settle the account the opposite party was reluctant to settle the account and did not allow the complainants to remit the balance due stating that the complainants have to close their account with Federal Bank Ltd., Thankey Branch. The opposite party stated in the version that the complainants availed another loan from bank through its Thankey branch for the purchase of Hyundai Getz car. According to the opposite party whether it is a loan from the Mararikkulam branch or the Thankey branch or any other branch it would be treated as a loan transaction with the Federal Bank Ltd and not a loan transaction with particular branch from where the cash was disbursed. The learned counsel of the opposite party produced the ruling cited in AIR 2014 Kerala page No.64 and argued that the bank is entitled to with held the vehicle hypothecated with the branch at Mararikkulam in exercises of the bankers general lien. On perusal of the said ruling we are of opinion that it is not applicable in this case. In the instant case, the bank has sanctioned the loan for purchasing the good carrier vehicle and the said vehicle was hypothecated to the bank as security for the payment. In a decision reported in CPJ III 2012 page 701 Hon’ble National Commission held that, “one cannot stop ‘NOC’ in respect of one vehicle even if other agreement is still continuing.” The said decision is squarely applicable in this case. It is not a disputed fact that the complainant has not remitted the amount as per the settlement between the parties. Therefore in view of the decision reported above the act of the opposite party is in purview of deficiency in service, and the opposite party caused deficiency in service by not issuing NOC to the complainants.
Since this Forum has already found that this Forum has no jurisdiction to entertain the dispute involved in this case, the complaint is dismissed with liberty to the complainants to approach before the appropriate Forum.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 30th of April, 2016.
Sd/-Smt.Elizabeth George (President) :
Sd/-Sri. Antony Xavier (Member) :
Sd/-Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Thomas Joseph (witness)
PW2 - Jancy Thomas (witness)
Ext.A1 - True copy of statement of account dated 07-02-2012
Ext.A2 - True copy of lawyer’s notice dated 13-02-2012
Ext.A3 - True copy of notice dated 24-02-2012
Ext.A4 - True copy of statement of account issued by S.B.T.cherthala Branch dated
11-02-2012
Ext.A5 - True copy of statement of account dated 18-03-2006
Ext.A6 - True copy of Statement of account dated 09-07-2009
Ext.A7 - Statement of account issued by Federal Bank Mararikulam Branch
Dated 20-01-2006
Ext.A8 - Statement of account issued by Federal Bank Mararikulam Branch dated
01-10-2005
Ext.A9 - Letter issued by Federal Bank Mararikulam Branch dated 24-05-2007
Ext.A10 - Statement of account issued by Federal Bank Mararikulam Branch dated
07-04-2006
Evidence of the opposite party:-
RW1 - Renjith K.R (Witness)
Ext.B1 - True copy of the agreement
Ext.B2 - True copy of the statement of account issued by Federal Bank Branch dated
31-01-2014
// True Copy //
By Order
Senior Superintendent
To
Complainants/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
