Challenge in these proceedings is to the order dated 25.2.2010 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ‘the State Commission’) in First Appeals No.1289 of 2009 & 2683 of 2009. The appeal before the State Commission was filed against the order dated 17.3.2009 passed by the II Additional District Consumer Disputes Redressal Forum, Bangalore in Complaint Case No.1344 of 2008 by which order the District Forum had partly allowed the complaint with a direction to the opposite party bank to refund a sum of Rs.3 lakh as against the amount of Rs.7,16,300/- received by the bank towards processing charges for sanctioning the loan. Aggrieved by the said order, both sides preferred appeals before the State Commission and the State Commission on consideration of the matter upheld the finding and order of the District Forum and dismissed both the appeals. 2. We have heard Mr. Rakesh Pathak, learned counsel for the petitioner bank and Mr. Ravi Panwar for respondent / complainant and have considered their submissions. 3. The facts and circumstances which led to the filing of the complaint and passing of the orders by the fora below are amply noted in the orders of fora below and need no repetition at our end. However, to decide this petition, we may simply notice that the petitioner bank had sanctioned Rs.2 crores of OCC loan and Rs.13 lakh term loan to the complainant and for that purpose, they had received a sum of Rs.7,16,300/- as the processing charges, insurance and legal fee. However, despite sanction the loan could not be availed by the complainant for their own reasons and accordingly, they claimed the refund of the amounts deposited by it with the bank towards process fee, insurance amount, legal fees etc. The bank resisted the claim primarily on the ground that there was no deficiency in service on their part because firstly they had not charged the total fee of about Rs.13 lakh which was ordinarily required for processing the loan case of the complainant and has received only a sum of Rs.6,50,000/- for upfront fees, Rs.66,300/- for service charges and Rs.16,500/- as valuation fee. The District Forum though returned the finding that there was no deficiency in service on the part of opposite party but still giving some reasons that it has some inherent powers to compensate complainant and going by the depleted financial condition of the complainant, had awarded a sum of Rs.3 lakh. The State Commission also without realizing the crux of the controversy affirmed the order of the State Commission. In doing so, the State Commission has placed heavy reliance on its own order in the case of P. Krishna Reddy & Anr. vs. Yagnesh Upadhyay & Anr. II (2007) CPJ 91. That case related to a financial institution where the said institution had declined to disburse the loan after sanctioning the same. The reliance of the State Commission on its own judgment was therefore wholly misplaced. 4. Learned counsel for the petitioner seeks to assail the impugned order as legally unsustainable on facts and circumstances as well as in law. The basis of his submissions is that the bank had already given a concession to the complainant and had charged ½% against 1% which is normally payable by a person seeking sanction of loan. In any case, the amount so paid has been utilized as part of it was paid to the Valuer and remaining part used in processing the proposal. It is also pointed out that the District Forum itself had found that there was no deficiency in service on the part of bank. Moreover, our attention has been invited to the finding of the District Forum where it observed as under:- “Therefore the complainant is not entitled for refund of this amount. The opposite party bank has paid Rs.16,530/- to Chandra Shekar & Co. towards Professional Charges. Therefore, the complainant has no right to ask for refund of that amount.” 5. Despite reaching such a categorical finding, we do not know what prompted the District Forum and lastly the State Commission to award a compensation of Rs.3 lakh to the complainant. Under the terms of the agreement also, the upfront money received by the bank was not liable to be refunded, more so, when it was on account of the fault of loanee itself that the transaction could not be completed. 6. There is yet another reason why the complaint could not be entertained by a consumer forum and the reason is that the complainant is a business enterprise and wanted the loan to further his business/commercial activity and to that end sought a loan of Rs.2 crores. Going by the definition of the term ‘consumer’ as it stands modified by the Amending Act of 1962 of 2002 effective from 15th March, 2003, any person who avails the service of a service provider for commercial purposes is excluded from the definition of consumer. In this case, going by the facts and circumstances of the case, there is no escape from the conclusion that the complainant could not be deemed to be ‘consumer’ and was not entitled to invoke the jurisdiction of the consumer fora for Redressal of his grievance. 7. For the reasons stated above, we allow the revision petition and set aside the orders passed by the fora below and consequently dismiss the complaint. However, parties are left to bear their own costs throughout. |
