Suresh Baban Gadekar vs ICICI BANK

REVISION petition no. 436 of 2010 has been filed against the judgment and order dated 14.07.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (Circuit Bench, Aurangabad) ( ''the State Commission '') in First Appeal no. 653 of 2006.

THE brief facts of the case as per the petitioner/ complainant are as under: Petitioner/complainant deposited Rs,1,00,000/- to respondent no. 4/opposite party no. 4 for purchasing tractor of Eicher Co. on 28.04.2003 and took a loan from respondent no. 3/ OP no. 3 of Rs.2,40,000/- @ 9% per annum interest was decided on such loan. The petitioner purchased tractor MH 16 F 4388 and Registered at R T O. Respondent no. 3 gave a table of statement about how to repay the loan to petitioner and the petitioner as per it repay it. The petitioner has deposited Rs.73,240/- for repayment of loan to respondent no. 3 out of it Rs.69,240/- were deposited from time to time. The petitioner has given Rs.1,00,000/- to respondent no. 4 and one instalments @ Rs.4000/- respondent no. 3 for depositing it into bank. But respondents no. 3 or 4 are not giving its receipt to him. Details of repayment to the Bank by the petitioner: Rs. Receipt no. Date 4,000/- 997863 27.03.2003 11,240/- 574675 24.07.2003 5,000/- 1305212 12.11.2003 15,000/- 1216039 28.11.2003 10,000/- 1540873 28.01.2004 9,000/- 997858 12.02.2004 5,000/- 9997862 12.03.2004 10,000/- 1894037 05.06.2004

Even then on 23.06.2004, respondent no. 3 apprehended the petitioner and drove away the tractor. After that on 10.03.2005, the respondent wrote a letter informing they sold away the tractor. But on inquiring it to RTO by the petitioner he has been informed that till date such tractor has not been transferred and it has been sold only for Rs.1,60,000/-. Due to seizure of tractor the petitioner has sustained a loss of Rs.1,80,000/-, because he was giving it on rent for cultivating land and he was earning Rs.1,30,000/- per month and the petitioner could not get Rs.1,30,000/- from it from the date of seizure. Respondent no. 3 seized and disposed of tractor even though the petitioner is able to pay. Respondent no. 3 has not taken any written permission for sale.

THE respondents no. 1 to 3 on the other hand, in their written statement have averred that "the Hon ''ble Consumer Forum has no jurisdiction to try and entertain this complaint as relation between complainant and opponent are debtor and creditor and the complainant has obtained commercial loan of Rs.2,40,000/- from ICICI Bank Ltd., for purchase of Tractor Eicher 485 Vehicle bearing registration no. MH 16 F 4388. On terms and conditions agreed between the complainant and opponents as per hypothecation agreement bearing no. LFADR no. 00001205843. It is further submitted that the complainant has not obtained the said loan under any scheme of the Government for Educated unemployed person but obtained the said loan for commercial purpose as per scheme of opponent. The complainant has agreed to pay 36 EMI/ instalments, i.e. first 5 instalments of Rs.4,000/- each and the sixth instalments of Rs.31,530/- and so on up to 36 instalments starting from 1st June 2003 to May 2006 as per loan agreement. The complainant has executed hypothecation agreement and other loan documents in favour of the opponent but the complainant has failed to pay EMI regularly as agreed by him. The complainant has defaulted in making payment of the instalments whenever the same fell due. On this count also the complaint of the complainant are liable to be dismissed.

THE respondents sold the said vehicle to a bonafide purchaser. It is further, submitted by these opponents that the petitioner admitted in his complaint that "His Financial Condition is Good ", but the petitioner on his own accord failed to repay EMI/instalments of the said vehicle as agreed by him. The petitioner has failed to pay EMI/ instalment from April 2004 on his own accord these fact shows that the petitioner is a wilful defaulter and he admitted the fact in his complaint. On repeated request calls and personal follow up on behalf of respondent the petitioner failed to pay the instalments as agreed by him. The petitioner voluntarily surrendered the said vehicle to the opponent on 23.06.2004. At that time surrender amount of Rs.37,420/- + bounces, penalty and interest etc., was due from the petitioner. Thereafter, the respondent has issued notice dated 12.07.2004 to the petitioner and gave due opportunity to the petitioner in spite of the said notice the petitioner failed to settled his account with the respondent on his own accord. Thereafter, the respondent after following due procedure of law and as per vehicle loan agreement and hypothecation agreement on ____/___/200 disposed of the said tractor for Rs.1,60,000/- and handed over the said vehicle and papers of the vehicle to the purchaser and respondent deposited the amount of the sale proceeds of the said vehicle in the loan account of the petitioner and started further action for the recovery of the remaining loan amount and bounces, penalty and interest etc.

THE District Consumer Disputes Redressal Forum, Ahmednagar ( ''the District Forum '') considering all the facts of the case gave the following order: "Interim order given is hereby confirmed. Within 30 days from the date of judgement (a) opposite party no. 1 and 2, 3 jointly or severally to give tractor No. MH 161 F 4388 in roadworthy condition to complainant; (b) if said vehicle is defective, expenses to repair borne by opponent no. 1 to 3; (c) opponent not to levy interest or fine on due instalments for one month from opponent giving possession of vehicle to complainant for due instalments from 23.06.2004 to possession of vehicle by complainant. And not to recover expenses to take away vehicle from complainant and to keep it in their possession, from complainant; (d) the instalment of complainant due on 23.07.2004 to be paid opponent within one month from the possession of vehicle by complainant. And complainant seems that further instalment will be due in each month respondent and complainant shall pay regularly to opposite party; or 2. If opponent has not given the seized vehicle of complainant to complainant ''s possession within 30 days, then within further 30 days; (a) opposite party no.1 to 3 jointly and severally shall pay to complainant the amount of Rs.69,000/- which complainant had paid to them and Rs.1,00,000/- paid to opponent no. ; (b) The above order para (1) considered to be cancelled. 3. OP no. 1, 2 and 3 jointly and severally shall pay to complainant Rs.15,000/- for mental agony and Rs.5,000/- as cost of complaint ". Aggrieved by the order of the District Forum, the respondents 1, 2 and 3/OP no. 1, 2 and 3 filed appeal no. 653 of 2006 before the State Commission against the petitioner and respondent no. 4/ OP 4. The State Commission vide order dated 14.07.2010 stated as follows: "We heard both the counsels and perused the record. It is an admitted fact that petitioner obtained loan from respondent. It is also admitted fact that with the assistance of said finance petitioner purchased tractor of Eicher company. Petitioner in the complaint admitted that tractor purchased by him is used for hire purpose for cultivation for which he used to charge money. Therefore, it can be said that tractor had been purchased for commercial purpose. Petitioner claiming compensation of Rs.13,000/- per month as he used to hire out the tractor to others. In total he claimed Rs.1,80,000/- for the loss of his business. As complainant himself mentioned in complaint that he used to hire out tractor to others for cultivation, i.e., using it for commercial purpose, we are of the view that complainant will not fall in the definition of ''consumer '' as per Consumer Protection Act. As the vehicle is used for commercial purpose complaint is not maintainable. District Forum did not consider this primary issue while deciding the complaint. On this ground, we are allowing the appeal. We pass the following order: (i) Appeal is allowed; (ii) The impugned judgment and order passed by the Forum is hereby quashed and set aside; (iii) Complaint stands dismissed; (iv) No order as to cost; (v) Copies of the judgment be issued to both the parties ".

DISSATISFIED and aggrieved by the order of the State Commission the petitioner has filed this present revision petition. Along with the revision petition, the petitioner has filed an application for condonation of delay of 59 days. The reasons given for the delay are as follows: It is submitted to this Hon ''ble Commission that the impugned order dated 14.07.2010 was received by the petitioner by post only on 02.10.2010. During the second week of October 2010, the petitioner approached his local counsel to discuss the consequences of the impugned order but the local counsel for the petitioner was not available during the month of October, 2010, because of some personal difficult of the counsel. The petitioner again contacted the said counsel to discuss the impugned order in the second week of November 2010, wherein the petitioner was advised by the said counsel to prefer a revision petition before the National Commission. The petitioner contacted his counsel at New Delhi for filing revision petition in the third week of November 2010. The counsel at New Delhi asked the petitioner to send the necessary papers in order to draft the revision petition. Accordingly, the petitioner sent the said documents to the counsel at New Delhi in the first week of December 2010. After perusing the documents the counsel for the petitioner at New Delhi found that some of the documents were missing. Immediately, the counsel again contacted the petitioner to send complete papers in the second week of December 2010.

THE petitioner sent the complete papers in the said revision petition to the counsel at New Delhi in the third week of December 2010. Accordingly, the counsel drafted the revision petition and sent the same to the petitioner for approval in the last week of December 2010. By the last week of December 2010, the period for filing the revision petition within time had expired. The petitioner could not send the approved draft to the counsel of the petitioner till the first week of February 2011, because the petitioner had encountered with a serious health problem during the month of December 2010 and January 2011 and in view of the matter some unintentional delay has been caused in filing the present revision petition. The petitioner was in Delhi for filing the said revision petition in the first week of February 2010 and accordingly the petition was finalised and filed before this Commission.

WE have heard the counsel for the petitioner as well as the respondents and have also gone through file carefully. The counsel for the petitioner could not explain as to how the petitioner becomes a ''consumer '' under the definition 2 (1) (d) of the Consumer Protection Act, 1986. The petitioner in his own complaint has stated in paragraph 8 as follows: "Due to the seizure of tractor applicant has sustained a loss of Rs.1,80,000/-. Because he was giving it on rent for cultivating land and he has earning Rs.1,30,000/- per month and applicant could got Rs.1,30,000/- from it from the date of seizure ".

We are of the view that the State Commission also in their order has rightly come to the conclusion that the tractor has been purchased for commercial purpose and hence, the complainant will not fall under the definition of ''consumer '' as per the Consumer Protection Act, 1986. As the vehicle is used for commercial purpose hence, the complaint is not maintainable. The District Forum did not consider this primary issue while deciding the complaint. The application for condonation of delay also gives no dates, name of the counsel or detailed reasons to account for the delay. It is also stated that though the petitioner had received the drafted petition sometime in December 2010, the petitioner could not sent the brief of the draft to the counsel till the first week of February 2011 because, the petitioner had encountered with serious health problems during the month of December 2010 and January 2011. This fact has not been supported by any affidavit or medical certificate.

ACCORDINGLY , we find that there is no ''sufficient cause '' to condone the delay of 59 days in filing the present revision petition. Consequently, the present revision petition being time barred by limitation is dismissed with cost of Rs.5,000/-. (Rupees five thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 17th May 2013 for compliance.