Sri S.C. Sahoo, Member-This is a complaint U/S 12 of C.P. Act-1986 filed by the complainant for a direction to Ops Finance Company not to take possession of the vehicle of the complainant and allow her time for deposit of installment and to receive the amount through cheque and to supply up to date A/C statement and pay Rs.20, 000/- compensation for financial loss harassment causing mental agony.
The case of the complainant in brief is that the complainant is the owner of a heavy goods vehicle (Hydraulic Excavator) bearing Regd. No. PC-300 LC (L&T) which was financed by the Ops for her lively hood and after execution of loan agreement/ documentation after performing formalities like depositing down payment, insurance premium and spent money towards body building and registration of vehicle and the complainant used to pay monthly installments earlier to the date fixed which can be reflected from the higher ledger as on December 2013. In spite of regular payment of installments the Ops is threatening to seize the alleged vehicle on default of one or two installments which is not intentional or willful since the mining business had been closed since one year and the complainant could keep up good relationship with the Ops paying installments and the Ops becoming vindictive and insisting to put his signature on the form for surrender of the alleged vehicle as a result the complainant could not engage the alleged vehicle for earning money for repayment of loan and also the Ops have threatening her guarantor also, though the complainant is going on paying the installments and the receipt of February shows that a sum of Rs.27,30,701/- has been paid by the complainant and still then the Ops threatening for seizure. Hence, this complaint filed for restricting the Ops not to seize the alleged vehicle.
In support filed: -
1. Copy of R.C Book of Vehicle – 1 Sheet
2. Copy of Payment Schedule – 1 Sheet
After service of notice Ops filed their version/show cause jointly through their engaged counsel challenging the jurisdiction of this forum for adjudication of the present proceeding on the issues raised in the complaint petition do not fall within the ambit and scope of C.P. Act as there is an arbitration clause in the agreement and the complainant is not a consumer under the provision of C.P. Act and further averred that total contract value was to be repaid in 35 EMIs and out of which a sum of Rs.19, 93, 067/- is default amount to be paid by the complainant out of which Rs.15, 45, 770/- was arrear installments dues and the present case is premature in nature and the present complainant and his wife namely Smt. Bimala Das have filed 4 nos. of similar complaint cases against these Ops vide CC No. 60/14, CC. 61/14 CC. 62/14 and CC. 59/14 and the complainant and his wife are habitual defaulter and those assets as are enshrined in the complaint petition financed by these Ops are in commercial in nature and not used for lively hood purpose and the facts/pleadings in all 4 nos. of aforementioned cases are almost same and similar and to put the Ops in to further pecuniary loss filed this case.
In support filed: -
1. Statement of A/C- 3 Sheets
2. Letter dt.04.12.2013 & Postal Proof – 2 Sheets
Heard, the learned counsel for the Ops in absence of the complainant on merit and perused the materials on records. It is not dispute that complainant is a borrower before Ops and the alleged assets i.e. the hypothecated vehicle financed by these Ops to a sum of Rs.53, 82, 516/-
In this context, learned counsel for the complainant on the date of filing complaint petition pressed to pass an order on the interim petition not to seize the alleged vehicle of the complainant which was subsequently not taken in to consideration on 04.02.2015 as the learned counsel for Ops vehemently objected on the interim petition on the ground that the complainant is not a consumer and habitual defaulter of a sum of Rs.19, 93, 067/- and the present case is premature in nature and the complainant is not a consumer since the vehicles financed by these Ops are used for commercial purpose. So question of commercial purpose/ nature as arised by the arguments/pleading of the Ops is to be decided first.
It is observed that the complainant along with his wife Smt. Bimala Das are prominent businessman have fleets of vehicles, excavators engaged in business of transportation, could not purchase vehicle for earning lively hood to be covered by self employment and the complainant being a businessman having the alleged Excavator (L&T) financed by these Ops could ply the said vehicle himself was not conceivable and commercial purpose was involved and Excavator was being used for commercial purpose as it is clear that if a person buys goods for earning profit on a large scale for his use, he will be deemed to be carrying commercial activity and cannot be termed as consumer. So if the Excavator was being used by the complainant for digging soil/iron ore from one place to another for sale thereof in order to supplement his income from his business and he cannot be said to be a consumer.
On perusal of the complaint and other documents primafacie points out that the complainant purchased the alleged Excavator (L&T) from these Ops for commercial purpose, such being the case, the complainant cannot at all be construed as a consumer falling within the definition of Section 2(I)d of C.P Act 1986. Hence, the complaint petition of the complainant is dismissed as not maintainable.
Accordingly, the complaint petition of the complainant is disposed of.
