State Consumer Disputes Redressal Commission
Kotak Mahindra Bank vs Jagdev Singh on 5 August, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1228 of 2014
Date of institution : 04.09.2014
Date of decision : 05.08.2015
1. Kotak Mahindra Bank Limited, Commercial Vehicles Division,
Registered Office 36-38-A, Nariman Bhawan, 227, Nariman
Point, Mumbai 400021, through its MD/Chairman.
2. Kotak Mahindra Bank Limited, Commercial Vehicles Division,
SCO 120, 6th Floor, Feroze Gandhi Market, Ferozepur Road,
Ludhiana-141001, through its Branch Manager.
3. Kotak Mahindra Bank Limited, Model Town, Near T.V. Tower,
Bathinda.
....Appellants/Opposite Parties
Versus
Jagdev Singh S/o Jallandhar Singh, R/o House No.250, Village
Kalyan Sukha, District Bathinda.
....Respondent/Complainant
First Appeal against the order dated
09.07.2014 of the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Baldev Singh Sekhon, Member
Mr. Vinod Kumar Gupta, Member Present:-
For the appellants : Shri Sandeep Bhardwaj, Advocate For the respondent : Shri P.K.S. Phoolka, Advocate JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellants/ opposite parties against the order dated 09.07.2014 passed by First Appeal No.1228 of 2014 2 District Consumer Disputes Redressal Forum, Bathinda (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Jagdev Singh, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed with Rs.5,000/-, as cost and the opposite parties were directed to issue him the "No Due Certificate" against loan, in question, on the deposit of Rs.16,000/- by the complainant within 15 days of the date of receipt of the copy of the order and they were directed to comply with that direction within 30 days of the receipt of that amount.
2. The complainant alleged, in his complaint, that for earning livelihood for himself and for his family members, he purchased one truck make Tata bearing No.PB-03A-1367, with the financial assistance of Rs.4,07,989/- of the opposite parties, vide agreement dated 29.06.2010, by hypothecating the same in their favour. As per the agreement, he agreed to repay the borrowed amount, along with interest and the total amount payable by him was Rs.5,40,448/- and the same was to be paid in 35 monthly instalments. He had been regularly paying those instalments and the final instalment of Rs.31,000/- was paid by him on 10.07.2013. The loan was cleared. However, the opposite parties filed petition under Section 9 of the Arbitration and Conciliation Act, 1996 before Additional District Judge, Bathinda, on the false facts that the sum of Ra.16,000/- was still due from him, as penalty charges. He appeared in that petition and agreed to pay the said penalty amount and asked for the issuance of "No Due Certificate". The opposite parties illegally and arbitrarily withdrew that petition; which shows that their only First Appeal No.1228 of 2014 3 intention was to harass and humiliate him, by dragging him into uncalled for litigation. He made repeated requests to them to issue the "No Due Certificate" after getting the sum of Rs.16,000/- deposited from him, so that he may be able to get the hypothecation of the vehicle cancelled in the original Registration Certificate, but they did not issue the NOC/No Due Certificate. They even filed two criminal complaints under Section 138 of the Negotiable Instruments Act against him, by misusing the blank cheques bearing his signatures and which had been given to them as security. Last Statement of Account upto 24.03.2012 was issued by them, showing a balance of Rs.1,90,477/- and thereafter, no such Statement of Account was furnished to him despite requests. These acts on the part of the opposite parties amount to deficiency in service; which caused mental agony, pain and sufferings to him. He prayed for the issuance of directions to the opposite parties to issue the "No Due Certificate"; to return the blank signed security cheques; to pay Rs.50,000/-, as compensation, for the mental agony and pain suffered by him; and Rs.20,000/-, as litigation expenses.
3. The opposite parties filed joint written reply before the District Forum, in which they admitted that the complainant purchased the truck, as mentioned in the complaint, with their financial assistance of Rs.4,07,989/- and that borrowed amount was payable along with interest and the total amount payable by the complainant was Rs.5,40,448/-. They also admitted that the truck was hypothecated, by executing Hypothecation Agreement. They also admitted that they filed petition under Section 9 of the First Appeal No.1228 of 2014 4 Arbitration and Conciliation Act before the Additional District Judge, in which the complainant appeared and that the same was withdrawn. While denying the other allegations made in the complaint, they averred that the truck was a commercial vehicle and was purchased for commercial purposes and not for earning the livelihood. The complainant is a landlord and owns agricultural land and the truck was purchased in order to gain benefits. He failed to make the payment of instalments by the stipulated dates, as mentioned in the agreement. In the reply filed before the Additional District Judge, the complainant himself alleged that he deposited Rs.31,000/- on 10.07.2013 and was ready to pay Rs.16,000/-. Thus, he was a defaulter and those proceedings have nothing to do with the present complaint. No blank signed cheques were ever given by the complainant as security and the cheques were issued as part payment towards the loan amount and on account of the bouncing of those cheques, the complaints were filed against him. He has concealed the material facts and has not come to the District Forum with clean hands. He has neither any cause of action nor any locus standi to file this complaint and the same has been filed on false and baseless grounds. No cause of action has accrued to the complainant at Bathinda and, as such, this District Forum has no territorial jurisdiction to entertain and decide the same. They prayed for the dismissal of the complaint with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going First Appeal No.1228 of 2014 5 through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the appellants/opposite parties that the opposite parties specifically averred in their written reply that the transaction, in question, was a commercial one; which itself implied that the complainant was not a "consumer" within the meaning of the definition, as contained in Section 2 (1) (d) of the Act. Without deciding that point, the District Forum committed an illegality, while deciding the complaint on merits. It stands proved on the record that the complainant is not a 'consumer' and, as such, the complaint filed by him was not maintainable. He further submitted that the complainant had stood guarantor in respect of the loan obtained by his brother Amarjit Singh and agreement in respect of that loan was duly executed by both of them in favour of the opposite parties. By virtue of the terms of that agreement, the opposite parties are supposed to be in possession of the truck, in question, till the loan obtained by said borrower is repaid. Therefore, no order could have been passed, directing the opposite parties to issue the "No Objection Certificate/No Due Certificate". Thus, the order passed by the District Forum is liable to be set aside.
7. On the other hand, it has been submitted by the learned counsel for the complainant that no such objection was raised by the opposite parties before the District Forum that the complainant was First Appeal No.1228 of 2014 6 not a consumer and, as such, there was no opportunity with it to adjudicate upon that point before deciding the complaint on merits. Such a plea cannot be raised by the opposite parties for the first time in the appeal. The alleged loan obtained by the brother of the complainant was an independent transaction and it cannot be said that the truck, in question, is supposed to be in possession of the opposite parties in respect of that loan. Moreover, no such point was ever raised before the District Forum, by making an averment to that effect in the written reply, nor any evidence was produced to that effect. Such a point cannot be allowed to be raised for the first time in the appeal.
8. It is a fact that the opposite parities did not specifically plead in the written reply that the complainant is not a consumer, but they specifically pleaded that the vehicle so purchased was a commercial vehicle and the loan was obtained in connection with the commercial transaction. It can easily be implied from those averments that the opposite parties raised the plea that the complainant was not a consumer; as the person, availing the service for commercial purpose, is not a "consumer" as per the definition contained in Section 2 (1) (d) of the Act, which is reproduced below:-
(d) "Consumer" means any person who, --
(i) buys any goods for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly First Appeal No.1228 of 2014 7 promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment.
9. The complainant was conscious of the fact that the loan had been obtained by him from the opposite parties for commercial purposes for purchasing the truck and keeping in view that fact, he himself alleged in Para No.1 of the complaint that the truck was purchased by him for earning his own livelihood and that of his family members. It was held by the Hon'ble Supreme Court in (New India First Appeal No.1228 of 2014 8 Assurance Co. Ltd. Vs. Shri B.N. Sainani) (1997) (2) CLT 271 (SC) that the Act is not a general law for all remedies and it is for the protection of the consumer, as defined in the Act. Therefore, to succeed in the case, the complainant must show that he is a consumer. Thus, it was for the complainant to prove that he was a consumer and he could have claimed himself to be a consumer in respect of such a service obtained for commercial purpose, only by referring to the said Explanation. To take the benefit of that Explanation, the complainant was required to allege and prove that the service availed of by him was exclusively for the purpose of earning his livelihood by means of self employment. He neither alleged in his complaint nor produced any evidence for proving that the truck was purchased by him exclusively for earning his livelihood by way of self employment; though he alleged and proved that the same was purchased for earning his livelihood. He was required to prove both the ingredients. He failed to prove the second ingredient that he had purchased the truck for earning his livelihood by means of self employment. Therefore, he does not fall in the definition of "consumer" and the complaint was not maintainable under the Act before the District Forum. The District Forum committed an illegality, by deciding the complaint on merits, without first ascertaining as to whether the complainant was a consumer or not?
10. In the result, the appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
First Appeal No.1228 of 2014 9
11. The sum of Rs.2,500/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellants/opposite parties by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (VINOD KUMAR GUPTA) MEMBER August 05, 2015 (Gurmeet S)