State Consumer Disputes Redressal Commission
H.D.F.C. Bank Ltd., Haridwar vs Sh. Anjar Mehmood on 2 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 80 / 2011
H.D.F.C. Bank Ltd.
Branch Hardiwar
Through Power of Attorney & Legal Officer
Sh. Manish Pandey
H.D.F.C. Bank Ltd.
75, Mac Plaza, Rajpur Road, Dehradun
......Appellant / Opposite Party
Versus
Sh. Anzar Ahmad S/o Sh. Julfikar Ahmad
R/o Village Mohammadpur, Mohanpura
P.O. Mallapnagar, Tehsil Roorkee, District Haridwar
......Respondent / Complainant
Sh. J.P. Nautiyal, Learned Counsel for the Appellant
None for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Mr. D.K. Tyagi, H.J.S., Member
Dated: 02/11/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-Bank against the judgment and order dated 23.11.2010 passed by the District Forum, Haridwar in consumer complaint No. 71 of 2009. By the order impugned the District Forum has allowed the consumer complaint and directed the opposite party-Bank to pay excess amount of Rs. 27,940/- taken from the complainant alongwith Rs. 2,060/- as compensation, total sum of Rs. 30,000/- to the complainant, within a month from the date of order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that on 08.06.2007 the complainant took a car loan of Rs. 4,00,000/- (Rupees Four Lakhs) from the opposite party-H.D.F.C. Bank 2 Ltd. bearing loan number 11442842. Before sanction of loan, an agreement was made between the parties and complainant had signed over it. The opposite party-Bank had received 29 blank cheques from the complainant. One of those cheques was encashed by the opposite party every month against the installment of loan. The loan amount was to be paid within 30 months. The opposite party-Bank had fixed an installment of Rs. 15,873/- which includes the amount of installment alongwith interest. That the opposite party had received the entire amount in 18 installments and one installment was deposited in cash. In this way, a total sum of Rs. 3,01,587/- was paid before 22.12.2008. The complainant wanted to take no objection certificate from the opposite party, as he had to sell the car for which the opposite party-Bank had received a sum of Rs. 1,74,531.59ps. on 22.12.2008 from the complainant and after receiving this amount in cash, the opposite party issued no objection certificate to the complainant. The opposite party issued no objection certificate after receiving a total sum of Rs. 4,60,245.59ps. alongwith interest from the complainant in the duration of 19 months. The opposite party had received interest of 30 months duration in only 19 months, which was wrong. The opposite party had received excess interest amount of Rs. 27,940/- in 11 months with a rate of Rs. 2,540/- per month. The complainant demanded from the opposite party for Rs. 27,940/- which was taken by the opposite party for 11 months as excess amount. The complainant has also sent a legal notice through his advocate, even then the opposite party did not reply the same. In this way, the opposite party has committed deficiency in service. The registration number of the car purchased is UA08-J-8586.
3. The opposite party has filed written statement before the District Forum and has pleaded that it is admitted that the complainant took a loan from the answering opposite party. At the time of sanction of loan all the rules and regulations were told to the complainant, who after knowing all the rules took the loan from answering opposite party and the answering opposite party received the rate of interest according to the rules. It is 3 denied that the answering opposite party had received excess payment from the complainant. The answering opposite party received the amount from the complainant according to the rules of the Bank. It is denied that the answering opposite party has received excess interest on the loan amount. Actual fact is that the complainant himself fulfilled all the formalities before sanction of loan. It is wrong to say that the answering opposite party has recovered excess interest amount of 11 months. It is denied that any notice sent by the complainant was ever received by the answering opposite party. The complainant himself paid the loan amount without any pressure. In case there was any complaint, then the complainant could have met with the higher officials of the Bank, but he did not do the same. The complainant has filed a consumer complaint with wrong allegations. There is no cause of action to file the consumer complaint. In additional pleas, the answering opposite party has pleaded that the complainant is a literate person. He took loan to purchase the vehicle, for which the answering opposite party apprised the rules to the complainant in the form of agreement. The complainant agreed and after knowing all the terms and conditions of the loan, he himself without any pressure, fulfilled all the formalities and signed over agreement. The complainant himself gave post-dated cheques to the answering opposite party and assured the Bank that these cheques will be encashed on presenting in the concerned bank. The answering opposite party received the post-dated cheques as payment of installments bonafidely. The answering opposite party has not violated any terms and conditions of the agreement and the money demanded by the answering opposite party is according to the agreement. As both the parties have executed an agreement, therefore, consumer complaint is not maintainable before the District Forum, rather it is a case of civil nature. By the act of the answering opposite party, the complainant has not suffered any financial loss or mental agony. Accordingly, consumer complaint is liable to be dismissed.
44. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 23.11.2010 in the above manner. Aggrieved by the said order, the opposite party- appellant has filed the present appeal.
5. We have heard Sh. J.P. Nautiyal, learned counsel for the appellant and also gone through the entire record of the District Forum and have also perused the material placed on record. None appeared on behalf of the respondent.
6. Learned counsel for the appellant-opposite party has submitted before this Commission that the order impugned dated 23.11.2010 passed by the District Forum is against facts, law and merits of the case and is passed beyond the jurisdiction. The District Forum has not appreciated the evidence and facts presented before it. The District Forum has failed to appreciate that no mandatory legal notice was sent by the respondent- complainant to the appellant. The District Forum has failed to appreciate that the interest received by the Bank is according to the terms and conditions of the agreement. The District Forum has erred in giving finding that there is deficiency in service on the part of the appellant- opposite party.
7. Section 2 (d)(i) & (ii) of the Consumer Protection Act, 1986 defines "consumer" means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised 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 promised but does not include a person who obtains such goods for resale or for any commercial purpose or any person who 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 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.
5From the perusal of the consumer complaint, we are of the view that the respondent-complainant neither buys any goods for a consideration or hired or availed of any services for a consideration from the appellant-opposite party, rather the respondent had applied for a personal car loan, for which appellant agreed and after making an agreement, which was signed by both the parties, loan was sanctioned by the appellant in favour of the respondent. In this way, respondent is not a 'consumer' and, therefore, he could not file consumer complaint against the appellant. The consumer complaint was not maintainable before the District Forum.
8. Moreover, the appellant has filed certified copy of order sheets of the District Forum, Haridwar. We have gone through the order sheet dated 02.07.2010 and have found that this date was fixed for affidavit of the complainant. But on the said date, neither complainant nor his counsel were present before the District Forum and no affidavit in evidence was filed. Therefore, District Forum has closed the evidence of the complainant and directed the opposite party to file affidavit in evidence. On 04.08.2010 due to resolution by the Bar-Association no evidence was filed. Again on 16.08.2010, an adjournment application was moved by the counsel for opposite party and date 03.09.2010 was fixed for evidence. Further on several dates, neither complainant nor his counsel appeared before the District Forum. On 12.10.2010, Sh. J.P. Nautiyal, Advocate for the opposite party-Bank had filed affidavit of Sh. Manish Pandey, Legal Officer, H.D.F.C. Bank, Dehradun and evidence was closed and date was fixed for arguments. On 18.11.2010 arguments of learned counsel for the opposite party were heard and judgment was delivered on 23.11.2010. In this way, from the perusal of order sheets, it is very much clear that neither complainant nor his counsel appeared before the District Forum to file affidavit in evidence and opportunity to file affidavit was closed by the District Forum, whereas the opposite party has filed affidavit in evidence and learned counsel for the opposite party argued before the District Forum. It is very strange that without filing evidence before the District 6 Forum, the Forum below had decided the case in favour of the complainant-respondent, who never proved his case by adducing cogent evidence on affidavit. Whereas on the other side Sh. Manish Pandey, Legal Officer / Attorney, H.D.F.C. Bank has filed his affidavit (paper Nos. 16/1 to 16/6 on the District Forum's record) in which it is clearly deposed that the respondent-complainant himself deposited the loan amount without any protest. It was the duty of the complainant-respondent to prove that excess amount was taken by the appellant-opposite party and in case he had any problem with the appellant, he could have complained to the higher officers. The Bank had received the amount from the respondent- complainant according to the terms and conditions of the agreement made between the parties. The appellant has filed statement of account dated 18.11.2010 of the respondent. Neither affidavit of Sh. Manish Pandey, Legal Officer, H.D.F.C. Bank, nor document filed by the appellant-Bank were controverted by the respondent in any manner. Burden to prove that any excess amount was taken by the appellant was on respondent, which was never discharged by him. In this way, we are of the view that the Forum below has passed the impugned judgment and order arbitrarily and illegally.
9. For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and appeal is fit to be allowed.
10. Accordingly, the appeal is allowed. Impugned judgment and order dated 23.11.2010 passed by the District Forum, Haridwar is set aside and consumer complaint No. 71 of 2009 is hereby dismissed. No order as to costs. Statutory amount deposited by the appellant at the time of filing the appeal be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)