SHRIRAM INVESTMENTS LTD Vs. ANTONY K.P.JOY

JUDGEMENT

(1.) The appellants are the opposite parties 1 and 3 and respondents are the complainant and the 2nd opposite party respectively in C.C. 90/07 on the file of CDRF, Kannur. The complaint was filed alleging deficiency in service on the part of the opposite parties in their failure to issue clearness certificate with respect to the hire purchase transaction entered into between the complainant and the opposite parties 1 and 3 for availing a loan of Rs. 2,75,000/- for the purpose of purchasing a lorry. The opposite parties 1 and 3 entered appearance and filed written version denying the alleged deficiency in service. They contended that the complainant is not a consumer as he availed the service of the opposite parties for commercial purpose. It was further contended that the complainant was a defaulter in making payment towards the installments under the Hire Purchase Agreement. Thus, the opposite parties 1 and 3 prayed for dismissal of the complaint. Though notice was served on the 2nd opposite party , they remained absent. Before the Forum below the complainant was examined as Pw1 and Exts. A1 to A8 documents were marked on the side of the complainant. From the side of the first opposite party, the manager of the first opposite party Shriram Investments limited was examined as Dw1 and witness on their side as Dw2. Exts. B1 to B4 document were also produced and marked on the side of the opposite parties 1 and 3. On appreciation of the evidence on record, the Forum below passed the impugned order dated 17th July, 2010 directing the opposite parties to issue clearance certificate to the complainant in the event of receipt of Rs. 47,071/- from the complainant. No order was passed towards cost. Aggrieved by the said order the present appeal is preferred. When this appeal was taken up for final hearing, there was no representation for the second respondent/second opposite party. We heard the learned counsel for the appellants/opposite parties 1 and 3 and the first respondent/complainant. The counsel for the appellants challenged the correctness of the impugned order passed by the Forum below. He pointed out the mistake committed by the Forum below in calculating interest on the defaulted amount at 3% per annum instead of 36% per annum. He further submitted that the Forum below failed to consider the issue regarding the maintainability of the complaint in C.C. 90/07. It is vehemently argued that there is no pleading that the complainant availed the financial assistance from the opposite parties solely and exclusively for earning his lively hood by means of self employment. It is further submitted that the complainant is the owner of three lorries and other vehicles and that the transaction is a commercial transaction. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below . On the other hand, the learned counsel for the first respondent /complainant supported the impugned order passed by the Forum below. He challenged the very maintainability of B1 Agreement entered into between the parties. It is submitted that B1 agreement was executed by violating the provisions of Kerala Money Lenders Act and so B1 Agreement is abinitio void. It is further submitted that the Forum below has rightly calculated the interest @ 3% on the amount defaulted by the complainant. Thus, the first respondent/complainant prayed for dismissal of the present appeal. The points that arise for consideration are : 1.Whether the complaint in C.C. 90/07 can be treated as maintainable under the provisions of Consumer Protection Act. 1986? 2.Whether the complainant in C.C. 90/07 can be considered as consumer as defined under Section 2(1)(d)(ii) of the consumer Protection Act. 1986? 3.Whether there was any deficiency in service on the part of the opposite parties in issuing clearance certificate for the vehicle bearing registration No. KL13C 1073 which was purchased by the complainant with the financial assistance rendered by opposite parties 1 and 3. 4.Is their any legally sustainable ground to interfere with the impugned order dated 17thJuly, 2010 passed by CDRF, Kannur in C.C. 90/07? Points 1 & 2:- Admittedly the complainant (first respondent) availed loan of Rs. 2,75,000/- from opposite parties 1 and 3(appellants) for purchase of the lorry bearing registration No. KL13C 1073. The complainant is the R.C. owner of the said vehicle. Admittedly the aforesaid vehicle has been plying for getting amount by way of rent or charges. In other words, the vehicle is being used for commercial purpose. The complainant as Pw1 has categorically admitted that he is the owner of 4 or 5 vehicles including 3 lorries and those lorries are being used for commercial purpose. There is no averment in the complainant in C.C. 90/07 that the complainant is plying the vehicles for earning his lively hood. On the other hand, the opposite parties 1 and 3 in their written version, categorically contended that the money transaction entered in to between the complainant and opposite parties is a commercial transaction as the complainant availed the loan for commercial purpose of purchasing a lorry. Unfortunately, the Forum below did not consider the aforesaid issue regarding the maintainability of the complaint in C.C. 90/07 . The Forum below has also not considered the material issue as to whether the complainant is a consumer as defined in Sec. 2(1)(d)(ii)of the consumer protection Act, 1986. The aforesaid failure on the part of the Forum below can be treated as a serious omission. The materials available on record would make it abundantly clear that the complainant availed the service of the opposite party/Financier for commercial purpose of purchasing a lorry to ply the same for commercial purpose. Thus, it can be seen that the complainant cannot be treated as a consumer as defined under section 2(1)(d) of the C.P. Act. There is no case for the complainant that he has entitled to get the benefit of the explanation to section 2(1)(d) of the C.P. Act. The complaint itself is silent about the benefit under the explanation to the said section. In the absence of any such pleadings and evidence it can only be concluded that the complainant availed the service of the opposite parties for commercial purpose and so the dispute involved in C.C. 90/07 can not be treated as Consumer dispute and that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. Thus, this Commission have no hesitation to hold that the complaint in C.C. 90/07 is not maintainable under the provisions of C.P. Act, 1986 and that the complainant is not a consumer coming within the ambit of Consumer Protection Act, 1986. These points are answered accordingly. Points 3 & 4 : There is no dispute that the complainant availed a loan of Rs. 2,75,000/- from opposite parties 1and 3. The aforesaid loan was availed by executing B1 loan Agreement entered into between the complainant and opposite parties. Ext. A3 is the Payment Schedule produced by the complainant. As per Ext. A3 Payment Schedule the loan amount with interest accrued ought to have been paid in 36 monthly installments. The first 12 installments @ 13,150/- and the next 12 installments @ 12,550/- the next 11 installments @ Rs. 8,300/- and the last installment at Rs. 2,950/- Thereby the complainant ought to have paid a total of Rs. 4,02,650/-. The due date for payment of the installments are also stated in A3 Payment Schedule. Admittedly the complainant defaulted in paying the aforesaid installments. Ext. A4 series are the receipts produced by the complainant evidencing payment of the aforesaid installments. It would make it abundantly clear that the complainant was a chronic defaulter. As per B1 loan agreement the complainant was bound to pay overdue charges(Penal interest) @ 36% per annum). The total amount paid by the complainant would show that he has not paid the defaulted installments with penal interest @ 36% per annum. Page 6 of the impugned order would show that the calculation made by the Forum below. It calculated the outstanding balance at Rs. 47,071/-. It would make it clear that the Forum below calculated the penal interest only @ 3% per annum. Admittedly, as per B1 loan agreement the complainant is liable to pay penal interest @36%. The Forum below has not given any acceptable reasoning for calculating the penal interest on the defaulted amount @ 3% per annum. It is specifically stated by the Forum below at page 6 of the impugned order that the principal amount would come to Rs. 41,500/- and the default interest would come to Rs. 5,005/- only. The aforesaid calculation would make it clear that the Forum below calculated defaulted interest or penal interest only @ 3% per annum. B1 loan agreement would make it crystal clear that the complainant being the defaulter in paying the installments was liable to pay penal interest on the defaulted amount @ 36% per annum. Thus, it can very safely be concluded that the Forum has gone wrong in calculating the balance amount due to the opposite party financier. Calculation of the outstanding balance at Rs. 47,071/- can be treated as a wrong calculation. The aforesaid wrong calculation itself is enough to set aside the impugned order passed by the Forum below. The materials on record would make it clear that the complainant was a defaulter in making payments towards the installments. Admittedly on the date of filing, of the complaint in C.C.90/07, the complainant was a defaulter and balance amount was due to the opposite party financier from the complainant. In such a situation, the opposite party financier can be justified in not issuing the clearance certificate with respect to loan transaction. Thus, there was no deficiency in service on the part of the opposite parties in not issuing the clearance certificate to the complainant. The complaint in C.C. 90/07 ought to have been dismissed as there was no deficiency in service on the part of the opposite parties. The learned counsel for the first respondent/complainant vehemently argued for the position that B1 Loan Agreement is a void document and no reliance can be placed on the said agreement. According to him B1 Agreement was executed against the provisions of the Kerala Money Lenders Act. But there is nothing on record to show that the complainant and the opposite party/Financier entered in to B1 loan agreement against the provisions of Kerala Money Lenders Act. Admittedly the complainant and the opposite party Shriram Investments Ltd entered in to B1 Loan Agreement and thereby the complainant availed a loan of Rs. 2,75,000/- from the financier. It is on the basis of B1 Loan Agreement the complainant obtained the financial assistance from the opposite party/ financier. There is nothing in B1 Agreement that the said Agreement was executed under the provisions of the Kerala Money Lenders Act. Even if such contention is to be considered, the Forum below has no jurisdiction to entertain such a dispute regarding the maintainability of an agreed agreement executed by the parties to the complaint. Thus, in all respects, the aforesaid argument put forward by the learned counsel for the first respondent/complainant cannot be upheld. The first respondent/complainant being a party to B1 Agreement and execution of that agreement is admitted by the parties, the Forum below was bound to rely on the said Agreement. The appeal preferred by the opposite parties 1 and 3 is to be allowed and the impugned order passed by the Forum below is to be set aside. Hence we do so. These points are answered accordingly. In the result, the appeal is allowed. The impugned order dated 17.7.10 by CDRF, Kannur in C.C. 90/07 is set aside and the complaint therein is also dismissed. Considering the facts and circumstances of the case, the parties are directed to suffer their respective costs through out.