SUNNY AND ORS vs RAJESH TRIPATHI

K. S. Chaudhari, Presiding Member

[1] This revision petition has been filed by the petitioners against the order dated 13.09.2007 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission'') in Appeal No. 2135 of 2005 Sani & Ors. Vs. Rajesh Tripathi by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

[2] Brief facts of the case are that Complainant/respondent obtained loan of Rs.1,50,000/- from OP No. 3/Petitioner No. 3 in last week of December, 2000 on interest @ 16% p.a. At the time of obtaining loan, OP got signatures of complainant on many blank papers and revenue stamp on the blank paper, though, copy of loan agreement and details of loan were not provided to him. It was further submitted that no time limit was fixed for repayment of loan and interest was payable on annual basis. Complainant paid interest from time to time as mentioned in para 2 of the complaint and after 2.6.2001, total amount of Rs.94,000/- remained outstanding against him as principal amount and Rs.15,040/- remained outstanding as interest upto 30.6.2002. It was further submitted that complainant paid Rs.1,00,000/- on 1.6.2002 against total outstanding amount of Rs.1,09,040/-. It was further submitted that in the absence of complainant, OP No.1/Petitioner No. 1 took away Rs.60,000/- from complainant''s wife and also took away original registration certificate of his jeep UP-31-D-2387 and thus, obtained Rs.50,839.47 in excess which were not refunded to him. It was further submitted that in connivance with OP No. 4, OP got endorsement of hire purchase in favour of OP No.3 from RTO, though; jeep was not taken on hire purchase from OP. Alleging deficiency on the part of OP, complainant filed complaint before District forum for refund of Rs.50,839.47 and for deletion of endorsement of Hypothecation in registration certificate along with compensation. OP No. 1, 2 & 3 resisted complaint and submitted that vehicle was taken on hire purchase by complainant from OP and denied loan of Rs.1,50,000/- at the rate of 16% p.a. to complainant. It was further submitted that amount received on hire purchase agreement was to be repaid in monthly installments of Rs.7,733/- and complainant deposited Rs.60,000/- in OP''s office against installments and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to refund Rs.50,839.47 with 9% p.a. interest and further directed to get deleted hire purchase endorsement on registration certificate and further awarded compensation of Rs.10,000/- and cost of Rs.1,000/-. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

[3] Heard learned Counsel for the parties and perused record.

[4] Learned Counsel for the petitioner submitted that as per hire purchase agreement, payment of installments was not made by complainant and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that there was no hire purchase agreement between the parties, but complainant obtained loan of Rs.1,50,000/- and excess amount was recovered from the complainant and order of District Forum allowing refund was rightly upheld by learned State Commission; hence, revision petition be dismissed.

[5] Perusal of record reveals that complainant has not placed any document on record to substantiate that he obtained loan of Rs.1,50,000/- from OP No. 3 @ 16% p.a. interest. He has also not placed all receipts showing payment of borrowed amount along with interest. OP has also not placed any hire purchase agreement on record to substantiate that complainant obtained loan on hire purchase. Learned District Forum allowed refund of amount only on the basis of allegation in the complaint and learned State Commission further upheld that order without any cogent evidence on record.

[6] The core question is whether complainant hired services for any consideration from OP for falling within purview of consumer. Section 2 (o) defines ''service'' as under: "Section 2 (o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

As per complainant, it is simple case of advancing loan by OP No. 3 to the complainant on interest which does not fall within purview of financing and aforesaid advancement of loan does not fall within purview of any facility in connection with banking, transport, etc. as mentioned in Section 2 (o) and in such circumstances, complainant does not fall within purview of consumer within Section 2 (d) of Consumer Protection Act and complaint for deficiency of service was not maintainable before District forum.

[7] Learned District Forum committed error in allowing complaint, though, there was no deficiency of service pertaining to facilities under Section 2 (o) of the Consumer Protection Act and learned State Commission further committed error in dismissing appeal and in such circumstances, revision petition is to be allowed.

[8] Consequently, revision petition filed by the petitioner is allowed and impugned order dated 13.09.2007 passed by the learned State Commission in Appeal No. 2135 of 2005 Sani & Ors. Vs. Rajesh Tripathi and order of District forum dated 16.11.2005 passed in Complaint No. 150 of 2004 - Rajesh Tripathi Vs. Sani & Ors. is set aside and complaint stands dismissed with no order as to costs. Complainant is given liberty to approach appropriate forum for recovery of amount alleged to have been recovered by OP in excess of due amount.