Andhra Pradesh

Chittoor-II at triputi

CC/59/2016

M/s Sri Vishnu and Company, represented by its sole proprietor Dr.S.Nomusankar - Complainant(s)

Versus

Vasudeva Singh Sudheer, Branch Manager - Opp.Party(s)

Party in person

31 Jan 2017

ORDER

                                                                                                                                                             Filing Date:-31-05-2016                                                                                                                                                                                     Order Date:  31-01-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

PRESENT:- Sri.M.Ramakrishnaiah, President

                                                                                              Smt.T.Anitha, Member

 

                           TUESDAY, THE THIRTY FIRST DAY OF JANUARY, TWO THOUSAND AND SEVENTEEN

 

C.C.No.59/2016

Between

M/s. Sri Vishnu and Company,

Rep. by its Sole Propreitor,

Sri. Dr.S.Nomusankar,

Having office at D.No.4-1-165B,

Patnool Street, Near Renuka Parameswari Temple,

Tirupati,

Chittor District.                                                                                 … Complainant

 

And

1. Vasudeva Singh Sudheer,

Branch Manager,

HDFC Bank Ltd.,

19-8-180,

Krishna Towers, 1^st Floor,

AIR Bypass Road,

Tirupati – 517 501.

 

2. Aditya Puri,

CEO, HDFC Bank House,

Senapati Bapat Marg,

Lower Parel,

Mumbai – 400 013.

 

3. B. Muni Kumar,

Personal Banking, HDFC Bank Ltd.,

19-8-180,

Krishna Towers, 1^st Floor,

AIR Bypass Road,

Tirupati – 517 501.

 

4. Alla Kishore,

EEG Loans (Nellore),

HDFC Bank Ltd.,

19-8-180,

Krishna Towers, 1^st Floor,

AIR Bypass Road,

Tirupati – 517 501.                                                         … Opposite parties

 

         This complaint coming on before us for final hearing on 19.01.2017 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.Dr.S.Nomu Sankar, party in person for complainant and Sri. Samanchi Srinivasulu, counsel for the opposite parties 1 to 4 having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the complainant complaining the deficiency of service on part of the opposite parties and prayed this Forum to pass an order directing the opposite parties 1 to 4 to pay an amount of Rs.20,00,000/- towards compensation for mental agony suffered by him to equate the loss sustained by him during the business loan process and to pay costs of the complaint.

        2. The brief facts of the case are: The complainant submits that, he is running business of manufacturing Kasi threads ( Sacred threads) in the name and style of M/s. Sri Vishnu and Company, in order to eking his livelihood by means of self employment. The complainant further submits that he opened a current account in HDFC Bank, Tirupati Vide Account No. 50200000877462 on 29.04.2013 for day to day business transactions and he operated the current account regularly. By observing his daily transactions the 1^st opposite party informed him that, he is eligible to apply for loan amount of Rs.11,00,000/- for development of his business. Later the 1^st opposite party secured CIBIL report and advised the complainant to file an application for the business loan. Hence as per the instructions of the opposite party no.1 the complainant made an application to the opposite party bank authorities for granting of business loan on 28.06.2014 and produced all relevant documents to the opposite party no.1. The complainant further submits that as per the directions of the opposite party the complainant opened the savings bank account on 25.07.2014 Vide SB Account No. 50100051543998 and he deposited Rs.11,000/- by way of cheque. The complainant further submits that the opposite party bank authorities have collected an amount of Rs. 5,618 towards processing charges of the loan from the current account of the complainant CA Account No. 50200000877462, further the opposite parties stated that his application was forwarded to the higher authorities on 16.08.2014 for approval of the business loan and assured that the loan will be granted to him. But, later he received the information that his loan application was declined by the opposite party higher authorities on 18.09.2014, as his application does not meet the banking lending criteria. But due to surprise he approached the opposite parties several times and has stated that he submitted all the relevant documents to the opposite parties for the granting of the loan. Moreover, he is an esteemed customer of the opposite party bank who is having a good track record. Even after several requests made by him the opposite party did not gave the suitable reply to the complainant and failed to give the reason for declining of his loan. 

          3. Hence with no option he approached banking Ombudsman on 21.09.2014 Vide complaint No.20145009000978 of 2014-15 regarding dissatisfaction of services rendered by the opposite party’s bank. But the above said complaint was closed on 30.09.2014 as the opposite parties requested the Ombudsman they will resolve the matter. In the meanwhile on 01.10.2014 the bank authorities refunded the processing fee which was collected from the complainant to his current account. By considering the bank’s reply the ombudsman has closed the mater on 22.10.2014 by showing bias towards bank authorities. The complainant further submits that, as the banking ombudsman did not take any action against the bank authorities neither on grounds of deficiency of service nor the disciplinary action for misbehaving and playing fraud with the complainant/customer, he made an another complaint on 06.07.2015 vide Complaint No.20156009000161 to Banking Ombudsman reiterating the facts, but the banking ombudsman closed the complaint on the ground that the previous complaint No.2014150090000978 was already closed, hence the present complaint is not maintainable. The complainant further submits that almost 12 families and more than 500 pay workers were depending on his business and all of them suffered severe loss and the complainant has suffered mental agony as his business was put to irreparable loss and his company’s good will was vanished. All the acts of the opposite parties 1 to 4 amounts to deficiency in service in bank and customer relationship. Hence the opposite parties are liable for inducing the complainant to apply for business loan with a malafied intention for opening a new savings bank account and for collecting processing fee and making use of it illegally.

         4.  Hence he caused legal notice on 21.01.2016 to the opposite parties, the same was received by the opposite party 1 and 2 but they have not given any reply to the complaint. The legal notice sent to the opposite party 3 and 4 was returned. The complainant further stated that it is bounded duty of the opposite parties to respond to the legal notice issued by him. But, they failed to respond even after receipt of the legal notices which amounts to deficiency of service on part of the opposite parties. Hence he filed the present complaint.

         5. The opposite parties filed the written version by admitting the application filed by the complainant for the sanction of the loan and further contended that the complainant was not filed against HDFC Bank, but it is filed against for individuals worked for the HDFC Bank in different capacities from manager to managing director and there is no contractual relationship between the complainant and the opposite parties who are added as the parties to the present proceedings. Hence he has to file the case against HDFC bank represented by its Manager and not against individuals who worked under the bank. Hence on this ground also the complaint is liable to be dismissed.

        The opposite parties further contended that the present complaint is filed by Vishnu and Company which is a firm but he has not filed in individual capacity, hence the complaint against the firm is not maintainable before the Consumer Forum as the firm is not a consumer within the meaning of Consumer Protection Act. The opposite parties further contended that the complainant himself admitted that the above said firm engaged in the business of manufacturing of Kasi threads and having more than five hundred employees and the above said loan applied for the development of business which is for commercial purpose and he will not come under the purview of the consumer. And also there is no wisper in the complaint as to what is deficiency in service of the individuals mentioned in the complaint as there is no contractual relationship between complainant and the opposite parties. If at all there is any deficiency in service, the complainant should have been instituted against the HDFC bank represented by its manager and not against the individuals persons. Hence the question of deficiency in service will not arise. The opposite parties stated that though the bank is not mentioned as the party to the proceedings, it is submitted that there no deficiency in service of the HDFC bank in rejecting the sanction of the loan to the complainant firm, as the sanction of the loan is the discretion of the Bank. They will consider many aspects and decide whether to issue the loan or not. In this particular case the complainant loan application was declined due to the lending criteria of the complainant does not meet the bank norms and the same was communicated in detail on 18.09.2014 to the complainant.

           The opposite parties further contended that the complainant approached the Banking Ombudsman on 21.09.2014 vide complaint No. 201415009000978 on the same issue and the bank had filed its reply before the banking ombudsman. It is submitted that as a special case and only to resolve the issue amicably the  bank has refunded the processing fee to the complainant, though the bank was entitled not to refund the processing fee in  case the loan is not sanctioned.

           The opposite parties further contended that 12 families and more than 500 pay workers were depending on his business and all of them suffered severe loss. The opposite parties contended that how the employees will suffer if the loan is not sanctioned by the bank, complainant firm has to make its own arrangements to run their business and cannot blame the bank if the loan is not sanctioned. The opposite party further submits that the complainant has applied for a loan of Rs.11,00,000/- and praying compensation of Rs.20,00,000/- which itself clearly shows the complainant filed  the  case only to harass the individuals who are working for the bank. Hence the complainant failed to establish the contractual relationship with the individual persons mentioned in the complaint and also failed to establish the loss sustained by the firm. Hence the complainant is liable to be dismiss against the opposite parties.

         6.  The complainant filed his evidence on affidavit and Ex.A1 to A5 was marked on behalf of him. The opposite party one Saikumar Varaganti, S/o. Nagendra Prasad, Deputy Legal Manager in HDFC Bank filed his evidence on affidavit  and no documents were marked on behalf of the opposite parties. Both parties filed their written arguments and oral arguments were heard.

 

        7.  Now the points for consideration are:               

       (i)  Whether the complainant is a consumer within the meaning of section 2(1)(d)

                   of Consumer Protection Act?                

       (ii)  Whether there is any deficiency in service on part of the opposite parties

                   towards the complainant?

        (iii) Whether the complainant is entitled to the reliefs as prayed for?

        (iv) To what Relief?

          8.Point No (i).& (ii):- It is an admitted fact that the complainant firm opened current account in the name of Vishnu and company bearing account No.50200000877462 on 29.04.2013 in opposite party’s bank and he has been operating the said account for the business transactions. The complainant further stated that the opposite party informed him that he is eligible for loan of Rs.11,00,000/- for the development of the business and they secured CIBIL report. Accordingly he applied for the loan on 28.06.2014 and produced relevant documents to the opposite party and the opposite party deducted Rs.5618/- towards processing charges from the current account of the complainant for the sanction of the loan.

        Surprisingly the opposite party informed him the loan application was declined by the opposite parties higher authorities, that the applicant does not meet the lending criteria. Hence he suffered a lot in the business as the opposite parties intentionally declined his loan application which is nothing but deficiency in service.

       The opposite parties filed the written version and contended that the complaint itself is not maintainable as the complaint is filed in the name of the firm and the present complaint is filed against the bank employees in different capacities from manager to managing director as there is no contractual relationship between them and the complainant.

         9.   The opposite parties further contended that he applied loan for improvement of the business purpose and having more than five hundred pay workers worked in the firm, as such he applied loan for commercial purpose. Hence he is not a consumer within the purview of the Consumer Protection Act. The opposite party filed a reported decision in :

In Laxmi Engineering Works Vs. PSG Industrial Institute-(1995) 3 SCC 583 the Apex Court considered the dictionary meaning of the word ‘Commerce’ and explained what is meant by ‘commercial Purpose’ by giving illustrations. Relevant paragraph is as under:

        “The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on and activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large Scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression”commercial purpose” – a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car or typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods it yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose” , to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a Consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a Consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a Consumer”.     

         In this particular case also the complainant firm maintained the current account for day to day business transactions and also he has stated that 12 families and 500 pay workers depending on his business and he himself admitted that in order to improvement of his business he applied for loan, which clearly shows that he applied for loan for commercial purpose in the name of firm. Hence he will not come under the purview of Consumer U/s.2(1)(d)(ii) of Consumer Protection Act.

          The complainant further stated that the opposite parties assured him that they will give financial assistance by granting loan, but in order to prove the said contention he has not filed any documentary proof to substantiate his case except the bald allegation against the opposite parties. And also he has not submitted that he is acquiring all the eligible criteria for getting the loan. When the opposite party clearly mentioned that he does not meet the lending criteria of getting loan. On those circumstances the burden lies on the complainant to prove his case that he is having all the requisite qualification for getting loan. Hence the complainant miserably filed to prove his case and establish the case. Hence in the absence of the any documentary proof we cannot find any fault with the bank and caused having loss to the complainant firm. Hence this point is answered accordingly.   

         10. Point(iii):-   In view of the facts and circumstances of this Consumer case as discussed above in point 1 and 2 it can be said that the complainant is not entitled to any reliefs. Hence this point is answered accordingly.

        11.Point (iv):-  In view of our discussion on points 1,2 and 3 we are of the opinion that the complainant is miserably filed to establish his case against the opposite parties. Hence he is not entitled to the reliefs as sought for as such the complaint is liable to be dismissed.

           In the result, complaint is dismissed. No Costs.   

            Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 31^st day of January, 2017.

       Sd/-                                                                                                                               Sd/-                                                                              Lady Member                                                                                                             President

 

APPENDIX OF EVIDENCE

                              Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sri Dr. S. Nomusankar (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Sai Kumar Varaganti  (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Legal Notice issued by the Complainant to the opposite parties with postal receipts. Dt: 21.01.2016.
	Acknowledgement Cards 2 in Number.
	Returned Covers 2 in Number.
	Original copy of SSI Certificate. Form No.00306, Dt: 16.04.2010.
	Copy of Kasi thread manufacturing process.

 

                                     EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

-NIL-

                          Sd/-

                       President

// TRUE COPY //

                                                                                                 // BY ORDER //

                                        

                                                                                            Head Clerk/Sheristadar, 

                                                                                    Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainant

                  2) The Opposite parties 1 to 4.