Punjab

Ludhiana

CC/15/470

Anoop Jain - Complainant(s)

Versus

Capital first Ltd - Opp.Party(s)

12 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 470 of 07.08.2015

Date of Decision            :   12.04.2016

 Anoop Jain son of Shri Pal Jain, Prop. M/s Anoop Oswal Hosiery , G-5-300, New Shivpuri, 60 Feet, Sekhewal Road, Ludhiana.

….. Complainant

                                                         Versus

1.Capital First Ltd., Ground Floor, Sheetal Arcade, 3, Shakti Nagar, Pakhowal Road, Ludhiana, through its District Head.

2.Capital First Ltd., Indiabulls Finance Centre, 15^th Floor, Tower II, Senapati Bapat Marg, Mumbai-400013, through its Managing Director.

 

…Opposite parties

 

                             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.G.S.Tara, Advocate

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.           Complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by complainant Sh.Anoop Jain against Ops by claiming that he availed loan through four different loan accounts bearing No.2404342, 2350907, 2487055 and 2351409 with floating interest rate from Ops. Ops sought recovery of fore closure charges for the above said loan facilities in April 2015 and that is alleged to be an unfair trade practice. Complainant was called upon to pay pre-payment charges/penalty, despite the fact that recovery of the same barred by Circular DNBPS(PD.CC.No.399/03.10.42/2014-15) dated 14.7.2014 of Reserve Bank of India. That circular was brought to the notice of OPs, but despite that OPs remained adamant on levying the pre-payment charges. Complainant has to pay the pre-payment charges of Rs.2,29,892.58P on loan account No.2404342, but of Rs.2,95,559.72P in loan account No.2350907, of Rs.1,08316.44P in loan account No.2487055 and further an amount of Rs.7,05,594.03P in loan account No.2351409. So, foreclosure charges of amount of Rs.13,39,362.77P has been illegally charged. ‘No Due Certificate’ was obtained from Ops after paying the above said foreclosure charges under compulsion. It is claimed that complainant suffered mentally and financially due to this unfair trade practice adopted by the OPs. So, refund of amount of Rs.13,39,362.77P along with interest @18% per annum and compensation of Rs.1 lac along with litigation expenses of Rs.33,000/- sought/claimed.

2.                Notice of complaint issued to OPs through registered post, but registered cover sent to OP2 nor received back served or unserved and after 30 days period of lapse and after drawing presumption of due service, OP2 was proceeded against ex-parte. Op1 was served through Sh.Ravneet Singh, Clerk, but despite this service, none appeared for OP1 and that is why, OP1 was proceeded against ex-parte.

3.                Complainant in ex-parte evidence tendered his affidavit Ex. CWA along with documents Annexure A1 to Annexure A9 and thereafter, his counsel closed the evidence.

4.                Arguments were then heard. Records gone through carefully.

5.                 Perusal of Annexure A1 reveals that amount of Rs.7,05,594.03P was claimed as foreclosure charges from the complainant in loan account No.2351409, but perusal of annexure A2 reveals that Rs.2,95,559.72P was claimed as foreclosure charges from the complainant in loan account No.2350907. Likewise, perusal of annexure A3 reveals that Rs.2,29,892.58P was claimed as foreclosure/cancellation charges from the complainant in loan account No.2404342 and Rs.1,08,316.44P was claimed as foreclosure charges from the complainant in loan account No.2487055. All these amounts were paid by the complainant and that is why, ‘No Dues Certificates’ Annexures A5 to A8 were issued by Ops in favour of the complainant for disclosing that no outstanding dues remains towards the complainant in the above said four loan accounts. Levy of foreclosure charges/pre-payment penalty on floating rate loan has been barred by the Reserve Bank of India vide Circular dated 1.7.2014 as disclosed by Annexure A9 dated 14.7.2014. As such, it is vehemently contended by the counsel for the complainant that recovery of foreclosure charges through Annexure A1 to A4 from 20^th April 2015 each is illegal. Even if this illegality is there, but despite that it has to be seen as to whether complainant is a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. Though, in para no.1 of the complaint, it is claimed that complainant is an individual borrower of OPs, due to which, he is a consumer, but nowhere in the complaint, it is mentioned as to how much loan was contracted by the complainant from Ops.  Nor  it is  mentioned  in the complaint  that complainant contracted four loans in question just for earning livelihood. Rather, complainant is a proprietor of hosiery and as such, it is obvious that virtually four loans were contracted by the complainant for commercial purposes. Perusal of Annexures A1 to A4 reveals that name of borrower is M/s Anoop Oswal Hosiery. Further perusal of Annexures A1 to A4 reveals that huge principal amount was contracted by the complainant from OPs. Perusal of Annexure A1 reveals that amount of Rs.14,139,631.31P was contracted as principal loan amount by the complainant from Ops. Perusal of Annexure A2 reveals that Rs.59,22,819.42P was contracted as Principal loan amount by the complainant from Ops. However, perusal of Annexures A3 and A4 reveals that amount of Rs.46,06,778.65P and Rs.22,22,414.58P was contracted as principal loan amount by the complainant from OPs. A person carrying on hosiery business at the commercial scale alone will contract such hefty amount and pay the hefty monthly interest of amount of Rs.1,27,398.92P, 53,364.95P, 41,508.38P and 28,583.51P. So, in view of non-pleading of the fact that hosiery business carried on for earning livelihood, it has to be held that in fact the loans were availed for carrying on  the commercial activities.

6.                In case, the loan contracted or  installation of lift or like that is for commercial purpose, then Consumer Fora has no jurisdiction to entertain and try the complaint. Dismissal of complaint in such circumstances is warranted by giving opportunity to the complainant to seek redressal of grievances from the Civil Courts or from the appropriate authorities. In holding this view, we are fortified by the case law laid in titled as Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.). In the reported case, lift was got installed for commercial purposes and that is why the complaint was dismissed by holding that Consumer Fora has no jurisdiction. Likewise in case of Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.), it has been held that when the car was not purchased exclusively for the purpose of earning livelihood by means of self employment, but for the Director of Company, then same purchased for commercial purposes, due to which, Consumer Fora has no jurisdiction to entertain the consumer complaint. Likewise in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), it has been held that when a software is purchased by a private limited company and complaint filed without pleading that Managing Director running business for earning livelihood, then complainant will not be a consumer within the meaning of Section 2(1)(d) of the Act. Same is the position in the case before us because here it is not at all pleaded that loans contracted for carrying on business for earning livelihood alone. Rather, facts and circumstances enumerated above discloses that hefty loan amounts contracted on payment of hefty monthly loan installments and as such, those circumstances enough to reflect that loans in question were contracted for commercial purposes for running hosiery business. Being so, complainant is not a consumer and as such, consumer complaint is not maintainable. Even complainant has not produced the loan agreement documents for showing the purpose, for which, the loan was contracted and as such, virtually the complaint has been filed by suppressing the material facts. As and when a consumer complaint filed by suppressing the material facts, then the consumer complaint must not be allowed.

7.                Therefore, as a sequel of the above discussion, complaint merits dismissal and the same is hereby ex-parte dismissed. No order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

8.                File be indexed and consigned to record room.

 

                   (Vinod Bala)                                 (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:12.04.2016

Gurpreet Sharma.