State Consumer Disputes Redressal Commission
Sh. Bhag Singh. vs Manager, Corporation Bank. on 27 February, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 298/2018
Date of Presentation: 30.10.2018
Order Reserved on : 23.08.2019
Date of Order : 27.02.2020
......
Bhag Singh son of Shri Gian Chand R/o VPO Chachiot Tehsil
Chachiot District Mandi (H.P).
...... Appellant/Complainant
Versus
The Manager Corporation Bank Branch Nerchowk Tehsil Balh
District Mandi (H.P).
......Respondent/Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. R.S. Kaundal Advocate.
For Respondent : Mr. Sanjay Prashar Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 26.09.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.118/2017 titled Bhag Singh Versus The Manager Corporation Bank. Brief facts of consumer complaint:
2. Complainant Shri Bhag Singh filed consumer complaint under Consumer Protection Act pleaded therein 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 that complainant obtained loan of Rs.50000/-(Fifty thousand) for running tyre puncture business at Nerchowk from opposite party. It is pleaded that due to some exigency complainant could not open his workshop w.e.f. 22.12.2016 to 28.12.2016. It is pleaded that when complainant came to workshop on dated 29.12.2016 then it was found that opposite party placed lock in the workshop of complainant. It is further pleaded that complainant obtained loan from opposite party to earn his livelihood and to fulfill daily needs of his family members. It is pleaded that complainant used to earn Rs.700/-(Seven hundred) and complainant sustained loss to the tune of Rs.105400/-(One lac five thousand four hundred). It is pleaded that opposite party committed deficiency in service.
3. Complainant sought relief to the effect that opposite party be directed to pay a sum of Rs.105400/-(One lac five thousand four hundred) for loss of business. In addition complainant sought expenses of legal notice to the tune of Rs.2200/-(Two thousand two hundred). In addition complainant sought litigation costs to the tune of Rs.5000/- (Five thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action 2 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 against opposite party. It is pleaded that complainant is estopped by his own act and conduct to file present consumer complaint. It is pleaded that complainant does not fall within definition of consumer. It is further pleaded that complainant took loan of Rs.50000/-(Fifty thousand) from opposite party. It is pleaded that complainant hypothecated machinery with opposite party. It is pleaded that workshop of complainant remained closed for more than one month and complainant was intending to sell hypothecated machinery. It is further pleaded that opposite party locked premises in order to save public money. It is pleaded that opposite party was ready to open lock and asked the complainant to file affidavit to the effect that he would not sell hypothecated machinery or to provide guarantee to secure loan amount but complainant did not file affidavit. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission dismissed the consumer complaint on the ground that at the time of arguments learned Advocate appearing on behalf of opposite party brought to the notice of learned DCF/DCC that complainant already took keys of workshop from opposite 3 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 party on dated 24.11.2017. Learned DCF/DCC also held that as complainant obtained loan facility complainant does not fall within definition of consumer. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that deponent obtained loan amounting to Rs.50000/-(Fifty thousand) from opposite party for running tyre puncture business at Nerchowk Near BDO Office Ratti Road Tehsil Balh District Mandi (H.P). There is recital in affidavit that deponent due to exigency could not open workshop w.e.f. 22.12.2016 to 28.12.2016. There is recital in affidavit that opposite party locked workshop in question and deponent requested opposite party to open the lock of 4 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 workshop but opposite party did not open the lock of workshop. There is recital in affidavit that deponent also issued registered legal notice to opposite party.
9. Complainant also filed affidavit of Smt. Kaushlya Devi in evidence. There is recital in affidavit that workshop in question is situated at Nerchowk near BDO Office Ratti Road Tehsil Balh District Mandi (H.P). There is recital in affidavit that due to exigency of work complainant could not open workshop w.e.f. 22.12.2016 to 28.12.2016. There is recital in affidavit that complainant could not earn his livelihood. State Commission has carefully perused all annexures filed by complainant.
10. Opposite party filed affidavit of Ms. Praveena Manager Corporation Bank in evidence. There is recital in affidavit that deponent was posted as Branch Manager in Corporation bank Teh. Balh Distt. Mandi (H.P) w.e.f. February 2014 to 05.08.2017. There is recital in affidavit that complainant purchased machinery with the loan amount advanced by opposite party. There is recital in affidavit that complainant in the first week of December 2016 visited the bank and revealed that he would get job and he would sell hypothecated machinery. There is recital in affidavit that workshop of complainant remained closed for more than one month and bank locked the workshop in question in order to 5 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 secure return of public money. There is recital in affidavit that bank was ready to open the lock and asked the complainant to file affidavit to the effect that he would not sell hypothecated machinery or to provide guarantee to secure loan amount but complainant did not file affidavit and also did not furnish guarantee to secure loan amount.
11. Opposite party also filed affidavit of Shri Abhinav Kumar Manager Corporation Bank. There is recital in affidavit that deponent is Manager of Corporation Bank Teh.
Balh Distt. Mandi (H.P). There is recital in affidavit that complainant purchased machinery with loan amount and machinery lying in workshop of complainant was hypothecated with bank. There is recital in affidavit that in the first week of December 2016 complainant visited bank and informed that he would get job and he wanted to sell hypothecated machinery. There is recital in affidavit that bank advised complainant not to sell hypothecated machinery. There is recital in affidavit that thereafter workshop of complainant remained closed for more than one month and thereafter bank locked premises keeping in view safety point as public money was involved. There is recital in affidavit that thereafter in the month of January 2017 complainant came back and requested bank to open the lock. There is recital in affidavit that bank was ready to open the 6 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 lock and asked the complainant to file affidavit to the effect that he would not sell hypothecated machinery or to provide guarantee to secure loan amount but complainant did not file affidavit.
12. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for a sum of Rs.105400/-(One lac five thousand four hundred) for loss of business and legal notice expenses to the tune of Rs.2200/-(Two thousand two hundred) is decided accordingly. It is proved on record that complainant obtained loan to the tune of Rs.50000/-(Fifty thousand) from opposite party. There is no evidence on record that complainant is defaulter of payment of loan amount. Opposite party did not adduce any evidence on record in order to prove that complainant was defaulter in payment of loan amount. It is proved on record that opposite party locked the workshop of complainant in his absence. There is no evidence on record in order to prove that opposite party has issued legal notice to complainant for payment of any loan amount. There is no evidence on record in order to prove that opposite party has issued any prior legal notice to complainant for locking of workshop.
13. State Commission is of the opinion that locking of workshop without giving any prior legal notice for payment of 7 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 loan amount amounts to ipso facto deficiency in service on the part of opposite party. It is well settled law that any loan to the tune of Rs.50000/-(Fifty thousand) falls within definition of small and marginal loanee. See 2020(1) CPR 237 NC titled Krishna Versus Branch Manager Allahabad.
14. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for litigation costs is also decided accordingly. Learned Advocate appearing on behalf of opposite party has given statement before learned DCF/DCC that keys of lock stood handed over to complainant on 24.11.2017. It is proved on record that keys of workshop in question was handed over to complainant after filing of consumer complaint. State Commission is of the opinion that opposite party could not take benefit of handing over the keys during pendency of consumer complaint. State Commission is of the opinion that complainant is legally entitled for equitable litigation costs because keys of workshop was handed over to complainant during the lis pendence of matter before learned DCF/DCC.
15. Submission of learned Advocate appearing on behalf of Corporation Bank Balh that loan matter does not fall within jurisdiction of Consumer Authorities and on this ground appeal filed by complainant be dismissed is decided accordingly. Hon'ble National Consumer Commission has 8 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 held that interest acquired by bank for advancement of loan would be considered as consideration amount for service and loanee would fall within definition of consumer. See 2019(II) CPJ 295 NC titled ICICI Bank Ltd. Versus Mrinal Kanti Paul. See 2019(1) CPJ 203 SCDRC Orrissa titled Samkalpur District Co-operative Central Bank Ltd. Versus Baidanath Nayak & others.
16. Even complainant has specifically mentioned in consumer complaint that he is running workshop for self employment. As per explanation added to section 2 of Consumer Protection Act 1986 w.e.f. 15.03.2003 any service availed for purpose of earning livelihood by means of self employment would fall within definition of consumer. Kindly also see section 2(7) of Consumer Protection Act 2019. Even as per section 2(0) of Consumer Protection Act 1986 service of any description rendered by Bank will fall within definition of service. Kindly also see section 2(42) of Consumer Protection Act 2019.
17. Submission of learned Advocate appearing on behalf of Corporation Bank that machinery kept in workshop stood hypothecated with bank and complainant is not legally competent to alienate hypothecated machinery and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that 9 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 complainant is not legally competent to alienate hypothecated machinery because lien already stood created in favour of Corporation Bank. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to direct complainant to file affidavit to the effect that complainant would not alienate hypothecated machinery till loan amount of Corporation Bank is not liquidated. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
18. In view of findings upon point No.1 above appeal filed by complainant is partly allowed and order of learned DCF/DCC is set aside. It is ordered that Corporation Bank shall pay compensation to complainant to the tune of Rs.20000/-(Twenty thousand). It is further ordered that Corporation Bank shall pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Corporation bank will comply order within one month after receipt of certified copy of order. Complainant shall file affidavit to the effect that he will not alienate hypothecated machinery till loan amount is not liquidated within one month after receipt of certified copy of order.
19. Certified copy of order be sent to learned DCF/DCC for information forthwith and file of State 10 Bhag Singh Versus Manager Corporation Bank F.A. No.298/2019 Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 27.02.2020 K.D 11