Delhi

StateCommission

A/1039/2014

SH. SATISH MALHOTRA - Complainant(s)

Versus

THE G.M. UNION BANK OF INDIA & ANR. - Opp.Party(s)

25 Apr 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:25.04.2018

 

First Appeal- 1039/2014

(Arising out of the order dated 07.10.2014 passed in Complainant Case No. 180/2012 by the District Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi)

 

Shri Satish Malhotra,

Son of Late Shri R.L. Malhotra,

Prop. of M/s. Solo Travel & Tour,

10067/1, Multani Dhanda,

Pahar Ganj, New Delhi-110055

 

And also at:

A-61, Plot No.1, Sector-10,

Dwarka, New Delhi-110075.

…..Appellant

 

Versus

1. The General Manager,

Union Bank of India,

Bhagat Singh Market,

Gole Market,

New Delhi.

 

2.       Branch Manager,

          Union Bank of India,

          2/2, Desh Bandhu Gupta marg,

          Pahargarj, New Delhi.

.….Respondents

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

1.                Aggrieved by the order dated 7.10.14 passed by the Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi (in short, the “District Forum”) in Complaint Case No.180/2012, the present appeal is filed by appellant/complainant.  By the impugned order, Ld. District Forum has dismissed the aforesaid complaint.

2.                Briefly the facts relevant for the disposal of the present appeal are as under:

A complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the appellant herein i.e. complainant before the District Forum stating therein that he was running a tour and travel agency in the name and style of M/s. Solo Travel & Tour, Multani Dhanda, Paharganj, New Delhi.  Appellant/complainant was maintaining an account with respondent-2/OP-2 in the name of Solo Travel & Tour.  The said account was declared NPA.  It was alleged that after declaration of NPA, appellant/complainant had offered one time settlement (OTS) to the respondents/OPs.  Thereupon respondents/OPs had addressed a letter to M/s. Solo Travel & Tour wherein it had agreed for one time settlement for a total amount of Rs.38 lacs against outstanding dues of Rs.54,23,485/- as full and final settlement on the following terms and conditions:

“i) 10% of settled amount within 15 days from the date of receipt of approval of settlement by bank.

 

ii) Further 10% of settlement amount by end of Feb. 2008.

 

                          iii)Balance 80% of settled amount by 30^th Oct. 2009 in quarterly instalment.”

 

3.                The appellant/complainant had agreed for above said terms and paid Rs.5.93 lacs during the OTS time.  After lapse of OTS, appellant/complainant further deposited Rs.13 lacs.  However, respondents/OPs informed that since he did not make timely payment, the OTS had been cancelled.  Thereupon on 17.9.10, appellant/complainant requested the respondent-2/OP-2 to give the breakup of outstanding and vide letter dated 21.9.10, the respondent-2/OP-2 informed that an amount of Rs.25,36,726/- was payable which included principal amount of Rs.19,08,000/- and interest amount of Rs.6,28,726/- up to 31.8.10.  It was further stated that some proceedings were pending before the Debt Recovery Tribunal i.e. DRT regarding some other case and during the pendency of said proceedings,  appellant/complainant again offered one time settlement and in pursuance of that respondent-2/OP-2 agreed for settlement for a sum of Rs.26,40,000/- against outstanding of Rs.54,23,485/-.  It is stated that the appellant/complainant agreed for the said amount and made the payment of Rs.26,40,000/- to respondent-2/OP-2 and settlement was made and appellant/complainant got the  mortgaged property papers released.  It was alleged that respondent-2/OP-2 at the time of one time settlement never considered the amount of Rs.18,93,000/- already paid by the appellant/complainant in lieu of OTS settlement which was earlier agreed between the parties.  The appellant/complainant regularly approached the respondent/OP for refund of said amount but the same was not given.  Thereupon appellant/complainant sent a legal notice dated 28.9.11 which was replied by respondent-2/OP-2 on 29.11.11.  Despite that the amount was not refunded.  Appellant/complainant again sent a notice but no action was taken by respondent-2/OP-2. Left with no option, appellant/complainant filed a complaint before the District Forum seeking refund of the amount of Rs.18,93,000/- with interest @ 18% p.a. from the date of payment till realization, Rs.1 lac towards compensation and also prayed for litigation cost.

4.                The claim was opposed by the respondents/OPs by filing written statement wherein preliminary objection was raised that the appellant/complainant was running a travel & tour agency in the name and style of M/s. Solo Travel & Tour and was operating an account with respondent-2/OP-2 in the name of his business and the said account was later declared NPA wherein the appellant/complainant had offered OTS and the same was accepted by the respondents/OPs and the proposal was approved for Rs.38 lacs against an outstanding of Rs.54,23,485/- under the terms and conditions as has been stated above.  It was also admitted that the appellant/complainant had paid 10% of amount i.e. Rs.5,93,000/-. Thereafter the appellant/complainant did not pay and time for payment of OTS had lapsed.  However, thereafter the appellant/complainant had deposited a sum of Rs.13,00,000/- as was alleged by the appellant/complainant. Respondents/OPs admitted that the appellant/complainant had deposited Rs.18,93,000/- with it but the remaining OTS amount remained unpaid as such OTS was cancelled.  Thereafter discussion for settlement was revived.  It was stated that the appellant/complainant vide letter dated 20.1.11 admitted that respondent-2/OP-2 would repay the balance OTS amount with interest @ BPLR as per approved terms and conditions which came to Rs.26,40,000/- latest by 21.1.11 and the said amount was paid by appellant/complainant in a proceeding before the DRT in SA No. 99, 99A & 99B of 2010 and the said proceedings were also disposed of accordingly.  The respondents/OPs had denied any deficiency in service on their part.  It had also taken a plea that its services were availed for commercial purposes as such appellant/complainant was not a ‘consumer’ and prayed for dismissal of complaint. 

5.                The appellant/complainant thereafter filed a rejoinder wherein averments made in the complaint have been reiterated.  Both the parties had filed evidence by way of affidavits and also filed relevant documents.  Parties filed written arguments also. 

6.                After hearing both the parties, the Ld. District Forum dismissed the complaint vide impugned order referred above by holding that the appellant/complainant had obtained the services of respondent/OP for commercial purposes as such appellant/complainant was not a ‘consumer’ as defined under Section 2(1)(d) of the Act.  Ld. District Forum further observed that after settlement of account, the appellant/complainant ceases to be a ‘consumer’ and complaint was not maintainable under Section 12 of the Act.  The District Forum also examined the matter on merits and held that the appellant/complainant unnecessarily raised the issue of non-adjustment of Rs.18.93 lacs deposited by him. It was observed that earlier OTS of Rs.38 lacs was cancelled as appellant/complainant did not pay the complete amount within the time fixed.  Thereafter second proposal had started during the pendency of DRT proceeding in the year 2011 wherein appellant/complainant agreed to pay Rs.26,40,000/- to the respondent/OP.  The said settlement was independent of the earlier settlement as such appellant/complainant could not have asked for the adjustment of the amount paid by him.  

7.                Aggrieved with the aforesaid order, present appeal is filed by appellant/complainant.

8.                Ld. Counsel for the appellant/complainant has contended that there is negligency on the part of the respondent/OP in not adjusting the earlier amount of Rs.18,93,000/- paid by appellant/complainant to respondent-2/OP-2 after arriving at OTS dated 26.6.10.  It is further contended that in letter 21.9.10, respondent/OP had admitted that as on said date, an amount of Rs.25,36,726/- was payable by the appellant/complainant including principal amount of R.19,08,000/- and interest amount up to 31.8.10 to the tune of Rs.6,28,726/-. It is contended that in these circumstances it is clear that benefit of payment made earlier had not been given in arriving at OTS.  It is also stated that appellant/complainant is a ‘consumer’ and wrong finding is given by the District Forum.

9.                On the other hand, Ld. Counsel for the respondent/OP has argued that a well reasoned order has been passed and there is no illegality in the impugned order.  Appeal is liable to be dismissed.

10.              We have heard Counsel for the parties and perused the material on record.         

11.              It is admitted position that the appellant/complainant had taken a loan from respondents/OPs and there was some outstanding against him and OTS was arrived at between the parties and on the offer of appellant/complainant, respondents/OPs agreed for one time settlement in response to which a letter dated 27.12.08 was given by respondents/OPs by which it had agreed to one time settlement for Rs.38 lacs against outstanding of Rs.54,23,485/-.  Some payment was made by the appellant/complainant. It is also admitted position that appellant/complainant did not make the total agreed settlement amount during the OTS period as such aforesaid OTS was cancelled vide letter dated 26.6.10.  It is also admitted position that the appellant/complainant was contesting some proceedings before DRT and during the course of said proceedings, again settlement had arrived at between the parties in which appellant/complainant had paid Rs.26,40,000/-.  The aforesaid offer was given by the appellant/complainant himself vide his letter dated 20.1.11 to the respondent/OP which has been quoted in the impugned order and the said offer was accepted and the appellant/complainant made the payment on 21.1.11 and thereafter settlement was recorded by the Presiding Officer of DRT and the proceedings pending before the DRT were disposed of and the appellant/complainant got released his property documents.

 

12.              There is nothing on record to show that the appellant/complainant ever raised the issue of non-adjustment of sum of Rs.18,93,000/- deposited by him with the respondents/OPs as has been raised in the present proceedings.  No explanation has been given by the appellant/complainant as to why the said stand was not raised before the DRT where settlement had been arrived at between the parties.  There is a letter of the appellant/complainant on record dated 20.1.11 wherein he has offered amount of settlement to the respondent/OP.  No such plea is taken in the said letter also.  If appellant/complainant had paid excess amount, as is alleged, he ought to have raised the issue before the DRT.  In these circumstances, the appellant/complainant was not justified in filing a separate complaint before the Ld. District Forum raising the issue of non-adjustment of some amount when the matter in fact was settled before the DRT.  The settlement was arrived at on 21.1.11 and the complaint is filed before District Forum in the year 2012 which is an afterthought and misuse of the process of law.

13.              Further the complaint was also not maintainable as the same is relating to current account as the services of respondent/OP are taken for commercial purposes.  Appellant/complainant was running the business of travel and tour and as per material on record, loan was taken for expansion of business.  In these circumstances also, appellant/complainant is not a ‘consumer’.  The District Forum has rightly dismissed the complaint. 

14.              We find no illegality in the impugned order.  Appeal stands dismissed.

15.              A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  Thereafter the file be consigned to record room.      

 

 

(Justice Veena Birbal)​

President

 

(Salma Noor)

Member