ORDER

 [Per Shri Jayant S. Prabhu, President]

          By this order we shall dispose  the complaint filed by the Complainant  filed by the Complainant under section 12 of the Consumer Protection Act.

1. By the present complaint, the Complainant submits that he needed finance to purchase the tourist vehicle and hence he approached the Opposite Party no.2.  By a loan  agreement dated 11-08-2007,  the Opposite Party entered into an agreement with the said Complainant.  As per  the said agreement,  the loan amount of Rs.7,36,000/- with interest charges of Rs.2,48,474 was to be paid in 48 installments.  The said loan came to be disbursed and accordingly the Complainant purchased a Mahindra Tourist vehicle which is registered under No.GA-09-U-0289.  The said vehicle came to be hypothecated in the name of the Opposite Party No.2.  According to the Complainant he had deposited a sum of Rs.2,49,764/- as margin money with the Opposite Party. Due to the financial difficulties and the maintenance of the said vehicle the Complainant could not pay the regular installments.  Somewhere in the month of February 2009, the Opposite Party attached the said vehicle from the custody of the driver of the said vehicle.  By a letter dated 10/03/2009, the Complainant had requested to release the said vehicle by arriving at an understanding.

1. As per the Complainant, somewhere in the month of May 2009,  the Complainant came to know that the Complainant came to know that  the Opposite Party published a public notice on                  06-05-2009 for the auction of the vehicle which was to be conducted on 11^th May at 10.30a.m.  On noticing the notice in the news paper, the Complainant issued a legal notice requesting them to hand over the vehicle to him.  According to him he also addressed another letter to the Opposite Party and offered to pay and settle the entire loan amount of Rs.7,00,000/-. However, inspite of the said letter the Opposite Party went ahead with the auction and therefore, according to the Complainant there is deficiency in service and hence he is entitled to a sum of Rs.3,60,000/-  for compensation and also for  return of the said vehicle. 

1. In support of his case he had relied on the agreement dated 11-08-2007  and other relevant documents.

1. Written statement on behalf of the Opposite Party is dated 09-09-2009.

1. As per the written statement, the Opposite Party stated that they had filed proceedings before the Collector of Salcete at South Goa under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 for the possession of their secured assets being the subject matter of the complaint.  According to the Opposite Party,  the Complainant was duly served with the notice before initiating with the said proceeding.  The said notice was duly served on the Complainant.  By an order dated 28-01-2009, the District Magistrate was pleased to provide assistance for taking over of the assets from the possession of the Complainant.

1. According to the Opposite Party, the vehicle was thereafter taken over from the custody of the Complainant and was auctioned and sold only after publishing the auction notice on the daily news paper.  According to them, as the Complainant could not pay the regular installment as stipulated in the contract they had every right to take possession of the vehicle and liquidate it in consideration of the amount that was required to be paid to them by the Complainant.

1. According to them, this Forum has no jurisdiction to entertain the present complaint,  as the asset i.e. the vehicle was taken under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act.

1. Ultimately, they pray that this Forum has no jurisdiction to interfere with the order passed by Collector under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act.  They also submit that the Complainant was a regular defaulter and that the Opposite Party had several times requested the Complainant to regularize the loan by paying the dues and that several reminders were issued to him.

1. Heard the Lr. Counsel for both the parties today.

1. From the records we observe that the Complainant was admittedly a defaulter.  We also find that a notice was issued to the Complainant under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act  before taking possession of the vehicle.    According to us it was the duty of the Complainant to regularize the loan amount or pay the entire dues once the notice was issued to him.  We brought this fact to the notice of the Lr. Counsel for the Complainant  Mr. Kholkar.  According to him, the Opposite Party abused their powers and have taken custody of the vehicle by force and therefore,  have  not followed  the procedure  under the  Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act and therefore,  according to them there is a deficiency in service.

1. We cannot accept this contention of the Complainant.  Once a notice is issued under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act the Complainant should have knocked the doors of the Tribunal under which the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act is constituted. If he had any grievance he ought to have raised his grievance before  the said Tribunal.  Therefore,  we are of the opinion that this Forum has no jurisdiction as stated by the Opposite Party.

1. Having said that we would further  like to state that seizure of the vehicle under an agreement for default in payment of installments cannot be considered as deficiency in service. In support of our contention we would like to rely upon the decision of  Hon’ble Goa State Consumer Disputes Redressal Commission in FA No.31/2014 in Sanjay Volvoikar v/s Shriram Transport Finance Co. Ltd., decided on 06-09-2014 and would like to reproduce a para which reads as under:

“25.          The National Commission in Shriniwas vs. M/s. Mahindra Finance, 2011 (3) CPR, 113, relying on its earlier decisions including the Manager, St. Mary’s Hire Purchase Pvt. Ltd. vs. N. A. Jose, ILR 1995 NC DRC/III 1995 CPJ 58 has held that seizure of a vehicle under an agreement for default in payment of instalments cannot be considered as deficiency in service. In Mahindra and Mahindra Finance Company Ltd., vs. Sankata Prasad & ors., 2012 (1) CPR 197 the National Commission has held that in case of default in paying loan amount as per the agreement, the financer can repossess the vehicle. Again, in Ram Pal Singh vs. General Manager, Sri Ram Transport & ors., 2013 (1) CPR 351, the National Commission has held that when the Complainant failed to pay the instalments it was within the domain of the OP to repossess the vehicle and dispose it as per agreement and law. Yet again, in Mr. Ashok Laxman Gulhane vs. The Manager, Tata Finance Company Ltd., & ors., 2013 (1) CPR 558, on facts, the National Commission has held that the plea that no notice was issued to the petitioner fell to the ground and eventually held that vehicle can be repossessed and sold in case of default in repayment of loan amount. The Apex Court in the Managing Director, Orix Auto Finance (India) Ltd., vs. Shri. Jagmander Singh & anr. (by judgment dated 10/02/06 in CA No. 1070/2006) has held that:

“ Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petition in such contractual matters is practically non-existence. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced.”

1.   Moreover, we also find that as per the averment made by the Complainant in his complaint the vehicle was taken out from the custody of the driver of the Complainant.  If it is so, then the present complaint is beyond the purview of definition of  a consumer.  According to the Consumer Protection Act a “consumer”  means any person who (i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment  and includes   any user of such goods other than the person who buys such goods for a consideration paid   or promised or partly paid or partly promised or under any such system  of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or   (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment  and includes any beneficiary of such services other than the promised or partly paid and partly promised, or under any system of deferred payment,  when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services  for a commercial purpose]”.

1.  We could like to place our reliance on an unreported decision of Hon’ble  Goa State Consumer Disputes Redressal Commission dated 03-01-2013 in FA No.19/2010 wherein the Commission has held as follows:

“8. Admittedly, before a person approaches a Forum under the C.P. Act, 1986, he has to qualify himself to be a consumer, an expression which has been defined under section 2(d)(i) of the C.P. Act, 1986 and further explained in the explanation below it. A person who buys any goods for resale or for any commercial purpose is not included in the said definition under section (2)(d)(i) of the Act. The explanation further requires that the goods bought and used by him should exclusively be for the purpose of earning his livelihood by means of self employment. In the case of M/s. Cholamandalam DBS Finance Ltd vs. Jogender Singh (supra) it has been stated that unless the goods were purchased or services were availed by a person exclusively for purpose of earning his livelihood by means of self-employment, such purchase or availment of service will be for commercial purpose. Reference was made to Laxmi Engineering works and it was ultimately held that Jogender Singh was not a consumer. The contention of Lr. Adv. Shri. Kamat that the complainant wanted to replace his vehicle of 1994 model with the vehicle in question is not borne out of the record. On the contrary, it appears that the complainant was already having an old pick-up and was earning his livelihood by driving the same. As can be seen from other averments in the complaint, the complainant wanted to earn profits from the purchase of the vehicle after repairing the same and hiring it with Marico Company from which the complainant expected to earn Rs. 1500/- upwards per day. In other words, the complainant had purchased eicher tempo for commercial use.”

1.  As such we are of the opinion that the Complainant having used the vehicle for commercial purpose, cannot come under the purview of the definition of  Consumer Protection Act.

1. As such we find that there is no substance in the complaint filed by the Complainant and as such the complaint stands dismissed.

   [Shri Jayant S. Prabhu]

              President

         [Ms. Cynthia Colaco]

                 Member