Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint against the opposite parties by alleging that the complainant No. 1 is loanee and complainant No. 2 is a guarantor. The complainant No. 1 has availed loan facilities from the opposite parties vide loan accounts bearing No. CVR068504477882, CVR068504644593 and UVR068505419953 under “ECLGS” for the purchase through finance of vehicles bearing registration No. PB02-DZ-0337, Chassis No. MAT514004K7D08795 and engine No. 497TC41DPY813886. The above said vehicle is used for the educational institution for carrying the students for the school namely Sacred Heart Convent School, Pakdil Nagar, Bhikhiwind District Tarn Taran and the fare collected from the parents of students, is the only mode to pay the loan installments and the livelihood of the complainants. The complainant regularly paying the installments to the opposite parties except the period of Covid-19. The last payments of installment of Rs. 27,904/- was paid on 19.1.2022, Rs. 5,312/- was paid on 19.1.2022 and Rs. 27,904/- was paid on 10.3.2022. The installment of Rs. 9,412/- of personal loan has already been regularly depositing by the complainants through ECS payment mode. The opposite parties did not follow the instructions/ guidelines of RBI/ Indian Govt. with regard to the Covid-19 for postponement of installment of loans for the period of closing of schools due to Covid-19 and violated the above said instructions/ guidelines of RBI/Indian Govt. The above said school Bus bearing registration No. PB02-DZ-0337 was not in use due to pandemic of Covid-19 and closing of all educational institution for carrying the school children from 22 March, 2020 to 10 January 2021 from 6 March 2021 to 31 July 2021, from 3 January 2022 to 8 February 2022. The concerned above said Bus was not used for the purpose of school children and for any other purpose in the above said period. The complainants are respectable citizens carrying a lawful business of educational transport for carrying the school children and having capacity to pay the loan installments but due to the above mentioned reason and circumstances, the complainant No. 1 did not able to pay the installments of the above said period and still ready to deposit the loan amount in due installment. The opposite parties without considering the above said reason and circumstances are threatening the complainants by issuing false legal notice to deposit the whole remaining loan amount or they will seized or impound the above said vehicle for which they are not entitled to do so. Moreover, the complainants reply to notice through counsel with request to provide facility of JCL or any other option to pay the installments by considering the above said circumstances of the Covid-19 and closing the educational institutions/ schools as mentioned above and further request not to impound or snatch the above said School Bus as it is the only source of income for livelihood and to pay the installments of loan by the complainants. The opposite parties are mentally, physically harassing the complainants through some notorious person representing themselves officer/ field officer of the Axis Bank namely Yogesh and Gurjant Singh by threatening to deposit total amount of remaining loan with interest within seven days or to take away the above said vehicle or to put in Jail and the opposite parties are trying to create false and frivolous defence in order to hide the above mentioned circumstances and prayed that the following relieves may kindly be granted:-
- The opposite parties be directed not to snatch / take away the above said vehicle school bus bearing registration No. PB02-DZ-0337.
- The opposite parties be directed to make rendition of loan account and compare the loan account of the above mentioned vehicle with the complainants and adjust the payments of installments made by the complainant to this party towards the outstanding loan.
- The opposite parties be directed to provide facility of JCL or any other option to pay the installment by considering the above said circumstances of the Covid-19 and closing of educational institution/schools as mentioned above.
- The opposite parties may kindly be directed to give Rs.50,000/- and Rs. 50,000/- as compensation on account of mental and physical harassment caused to the complainant at the hands of opposite parties, on account of short come, deficient and negligent service and litigation charges of Rs.40,000/- may also be awarded to the complainant in the interest of justice, equity and fair play.
Alongwith the complaint, the complainant has placed on record his attested affidavit Ex. C-1, Self attested copy of legal notice Ex. C-2, Self attested copy of reply to the legal notice Ex. C-3, Self attested copy of R.C. Ex. C-4, Self attested copy of loan account statement Ex. C-5, Self attested copy of agreement with above said school Ex. C-6, Self attested copy of Adhar Card of complainant No. 1 Ex. C-7, Self attested copy of Adhar Card of complainant No. 2 Ex. C-8, Self attested copy of Pan Card of complainant No. 1 Ex. C-9, attested affidavit of Harjinder Singh Ex. CW1, Attested affidavit of Satinder Kaur Ex. CW-2.
2 After formal admission of the complaint, notice was issued to Opposite Parties. Opposite Parties appeared through counsel and filed written version contesting the complaint by interalia pleadings that the complaint filed by the complainants is not legally maintainable. The complainant has not come in the court with clean hands and has suppressed material facts from the notice of this Commission as such they are not entitled to claim relief from this Hon'ble Commission. The complainants are not consumers under the definition of the Consumer Protection Act 2019. The complainant is a big transporter and has so many transport vehicles and has engaged employees/staff for the running of those vehicles and transport business. The complainants had purchased vehicle RC No. PB02dz0337 in September, 2019 by raising loan from the opposite parties through loan accounts bearing No. CVR068504477882 and CVR068504644593 for finance of vehicle and at the time of submitting his application for loan to the opposite parties, he submitted a certificate issued by his Chartered Accountant certifying that Harjinder Singh is into the business of transport and gross block original purchase price of plant & machinery for the said business of Rs.25,00,000/- Self attested copy of certificate attached herewith as Ex.OP1. In September, 2020 the complainants had taken a Top Up Loan vide account bearing no. UVR068505419953 under ECLGS scheme. It is further stated that complainant has alleged in the complaint that the said vehicle RC No.PB02DZ0337 is used for the educational institution for carrying the students for the school namely Sacred Heart Convent School, Pakdil Nagar Bhikhiwind Distt. Tarn Taran and the fare collected from the parent of students plying in the said bus, is the only mode to pay the loan installments and the livelihood of the complainants. The complainant themselves written in their complaint that running business of educational transport. The complainant No.1 has two other transport vehicles in his name bearing No. RC PB46W1081 and RC PB46M 8030 got finance from Chola Mandlam Finance Co. Ltd, Self attested copy of both RC are attached herewith as Ex.OP2 & 3. The complainants in their complaint nowhere given undertaking that they are self employed and have not engaged any other person in their business of transport. From all these facts it is clear that complainants are running commercial business of transportation and are not covered under the provisions of Consumer Protection Act 2019 and complaint is liable to be dismissed on this short ground. The jurisdiction of this Commission is barred in this case u/s 5 and 8 of Arbitration and Conciliation Act because as per terms and conditions of the loan agreement, both the parties in the complaint are bound with the arbitration clause mentioned therein. The opposite party has already initiated Arbitration Proceedings against the complainants and appointed Sh. M.S. Sabharwal (Retd. Ld. ADJ) Office at 481, Civil Wing Tis Hazari Courts Delhi as sole arbitrator to adjudicate upon the dispute and the said Arbitrator had already issued of appearance to the complainant on 23.7.2021. Self attested copy of notice of appearance dated 13.7.2021 and arbitration proceedings is Ex. OP4. As such, present complaint is liable to be dismissed on this legal ground. In case either of the parties to dispute has initiated arbitration proceedings, such subsequent legal proceedings are not maintainable. The said dispute of what so ever nature is bound to be adjudicated in accordance with the Arbitration and Conciliation Act only. The complainant has availed loan facilities vide loan accounts bearing No. CVR068504477882, CVR068504644593 and UVR068505419953. Only one loan account is under ECLGS scheme i.e. Top Up Loan A/c No. UVR068505419953. Loan accounts bearing No. CVR068504477882 and CVR068504644593 were availed for finance of commercial vehicle. Copies of loan agreements are Ex. OP-7 and OP-8, copy of POA in favour of Sumit Kumar is Ex. OP-9. The complainant No. 1 is running transport business and besides the vehicle baring RC NO. PB02DZ0337, the complainant No. 1 has also two other vehicles in his name bearing No. RC PB46W1081 and RC PB46M8030 got financed from Chola Mandlam Finance and is running the business of transport of school students and has employed drivers and other staff. As per the stipulated terms and conditions envisaged in the loan agreement, the complainants were bound to repay the loan facility, on time as per the schedule of payment, as agreed between the opposite parties and the complainant, the complainant agreed to repay the said loan in equated monthly installments of Rs.27,904/-, Rs.5,312/- and Rs.9,412/- each in the above said loan accounts respectively with applicable interest as per the repayment schedule of loan but the complainants had defaulted in making the regular and timely payment of equated monthly installments in terms of the loan agreement and the same were not paid in time despite repeated requests, reminders and personal visits made by the officials of the opposite party and due to financial indiscipline and delinquency to pay the equated monthly installments on time, a consideration amount is overdue and outstanding against the complainants and the opposite party was constrained to classify their account as Non Performing Assets in accordance with RBI guidelines. Demand notice was also issued on 2.7.2021 to the complainants but the complainants had failed to pay any heed to the genuine demands of the opposite party and as such as per terms and conditions of the loan agreement, the opposite party referred the matter for adjudication to the sole Arbitrator Sh.M.S.Sabharwal (Retd.ADJ) and the said sole Arbitrator issued notice dated 30.7.2021 to the complainants for their appearance for 18.8.2012 and after receipt of said notice the complainants have filed present false and frivolous complaint. Self attested copy of legal notice dated 2.7.2021 and notice of appearance dated 23.7.2021 are Ex. OP-5 and OP-6. With regard to the COVID-19 for postponement of installments of loans for the period of closing of schools due to Covid-19 and violated the above said instructions/ guidelines of RBI/ India govt. as alleged. The opposite parties had given all the concession as announced by RBI/ India Govt. on account of COVID-19 in the loan account of complainants and all other loan accounts. The complainants are willful defaulters. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same.
3 We have heard the Ld. counsel for the parties and have carefully gone through the record placed on the file.
4 Ld. Counsel for the complainant contended that the complainant No. 1 is loanee and complainant No. 2 is a guarantor. The complainant No. 1 has availed loan facilities from the opposite parties vide loan accounts bearing No. CVR068504477882, CVR068504644593 and UVR068505419953 under “ECLGS” for the purchase through finance of vehicles bearing registration No. PB02-DZ-0337, Chassis No. MAT514004K7D08795 and engine No. 497TC41DPY813886. The above said vehicle is used for the educational institution for carrying the students for the school namely Sacred Heart Convent School, Pakdil Nagar, Bhikhiwind District Tarn Taran and the fare collected from the parents of students, is the only mode to pay the loan installments and the livelihood of the complainants. He contended that the complainant regularly paying the installments to the opposite parties except the period of Covid-19. The last payments of installment of Rs. 27,904/- was paid on 19.1.2022, Rs. 5,312/- was paid on 19.1.2022 and Rs. 27,904/- was paid on 10.3.2022. The installment of Rs. 9,412/- of personal loan has already been regularly depositing by the complainants through ECS payment mode. The opposite parties did not follow the instructions/ guidelines of RBI/ Indian Govt. with regard to the Covid-19 for postponement of installment of loans for the period of closing of schools due to Covid-19 and violated the above said instructions/ guidelines of RBI/Indian Govt. He further contended that the above said school Bus bearing registration No. PB02-DZ-0337 was not in use due to pandemic of Covid-19 and closing of all educational institution for carrying the school children from 22 March, 2020 to 10 January 2021 from 6 March 2021 to 31 July 2021, from 3 January 2022 to 8 February 2022. The concerned above said Bus was not used for the purpose of school children and for any other purpose in the above said period. The complainants are respectable citizens carrying a lawful business of educational transport for carrying the school children and having capacity to pay the loan installments but due to the above mentioned reason and circumstances, the complainant No. 1 did not able to pay the installments of the above said period and still ready to deposit the loan amount in due installment. The opposite parties without considering the above said reason and circumstances are threatening the complainants by issuing false legal notice to deposit the whole remaining loan amount or they will seized or impound the above said vehicle for which they are not entitled to do so. He further contended that the complainants reply to notice through counsel with request to provide facility of JCL or any other option to pay the installments by considering the above said circumstances of the Covid-19 and closing the educational institutions/ schools as mentioned above and further request not to impound or snatch the above said School Bus as it is the only source of income for livelihood and to pay the installments of loan by the complainants. The opposite parties are mentally, physically harassing the complainants through some notorious person representing themselves officer/ field officer of the Axis Bank namely Yogesh and Gurjant Singh by threatening to deposit total amount of remaining loan with interest within seven days or to take away the above said vehicle or to put in Jail and the opposite parties are trying to create false and frivolous defence in order to hide the above mentioned circumstances and prayed that the present complaint may8 be allowed.
5 Ld. Counsel for the opposite party contended that the complainant is a big transporter and has so many transport vehicles and has engaged employees/staff for the running of those vehicles and transport business. The complainants had purchased vehicle RC No. PB02dz0337 in September, 2019 by raising loan from the opposite parties through loan accounts bearing No. CVR068504477882 and CVR068504644593 for finance of vehicle and at the time of submitting his application for loan to the opposite parties, he submitted a certificate issued by his Chartered Accountant certifying that Harjinder Singh is into the business of transport and gross block original purchase price of plant & machinery for the said business of Rs.25,00,000/-. He further contended that in September, 2020 the complainants had taken a Top Up Loan vide account bearing no. UVR068505419953 under ECLGS scheme. It is further stated that complainant has alleged in the complaint that the said vehicle RC No.PB02DZ0337 is used for the educational institution for carrying the students for the school namely Sacred Heart Convent School, Pakdil Nagar Bhikhiwind Distt. Tarn Taran and the fare collected from the parent of students plying in the said bus, is the only mode to pay the loan installments and the livelihood of the complainants. The complainant themselves written in their complaint that running business of educational transport. He further contended that the complainant No.1 has two other transport vehicles in his name bearing No. RC PB46W1081 and RC PB46M 8030 got finance from Chola Mandlam Finance Co. Ltd. The complainants in their complaint nowhere given undertaking that they are self employed and have not engaged any other person in their business of transport. From all these facts it is clear that complainants are running commercial business of transportation and are not covered under the provisions of Consumer Protection Act 2019 and complaint is liable to be dismissed on this short ground. The jurisdiction of this Commission is barred in this case u/s 5 and 8 of Arbitration and Conciliation Act because as per terms and conditions of the loan agreement, both the parties in the complaint are bound with the arbitration clause mentioned therein. The opposite party has already initiated Arbitration Proceedings against the complainants and appointed Sh. M.S. Sabharwal (Retd. Ld. ADJ) Office at 481, Civil Wing Tis Hazari Courts Delhi as sole arbitrator to adjudicate upon the dispute and the said Arbitrator had already issued of appearance to the complainant on 23.7.2021. As such, present complaint is liable to be dismissed on this legal ground. In case either of the parties to dispute has initiated arbitration proceedings, such subsequent legal proceedings are not maintainable. The said dispute of what so ever nature is bound to be adjudicated in accordance with the Arbitration and Conciliation Act only. The complainant has availed loan facilities vide loan accounts bearing No. CVR068504477882, CVR068504644593 and UVR068505419953. Only one loan account is under ECLGS scheme i.e. Top Up Loan A/c No. UVR068505419953. Loan accounts bearing No. CVR068504477882 and CVR068504644593 were availed for finance of commercial vehicle. He further contended that the complainant No. 1 is running transport business and besides the vehicle baring RC NO. PB02DZ0337, the complainant No. 1 has also two other vehicles in his name bearing No. RC PB46W1081 and RC PB46M8030 got financed from Chola Mandlam Finance and is running the business of transport of school students and has employed drivers and other staff. As per the stipulated terms and conditions envisaged in the loan agreement, the complainants were bound to repay the loan facility, on time as per the schedule of payment, as agreed between the opposite parties and the complainant, the complainant agreed to repay the said loan in equated monthly installments of Rs.27,904/-, Rs.5,312/- and Rs.9,412/- each in the above said loan accounts respectively with applicable interest as per the repayment schedule of loan but the complainants had defaulted in making the regular and timely payment of equated monthly installments in terms of the loan agreement and the same were not paid in time despite repeated requests, reminders and personal visits made by the officials of the opposite party and due to financial indiscipline and delinquency to pay the equated monthly installments on time, a consideration amount is overdue and outstanding against the complainants and the opposite party was constrained to classify their account as Non Performing Assets in accordance with RBI guidelines. Demand notice was also issued on 2.7.2021 to the complainants but the complainants had failed to pay any heed to the genuine demands of the opposite party and as such as per terms and conditions of the loan agreement, the opposite party referred the matter for adjudication to the sole Arbitrator Sh.M.S.Sabharwal (Retd.ADJ) and the said sole Arbitrator issued notice dated 30.7.2021 to the complainants for their appearance for 18.8.2012 and after receipt of said notice the complainants have filed present false and frivolous complaint. With regard to the COVID-19 for postponement of installments of loans for the period of closing of schools due to Covid-19 and violated the above said instructions/ guidelines of RBI/ India govt. as alleged. The opposite parties had given all the concession as announced by RBI/ India Govt. on account of COVID-19 in the loan account of complainants and all other loan accounts. The complainants are willful defaulters and prayed for dismissal of the complaint.
6 We have gone through the rival contention of Ld. Counsel for the parties.
7 From the appreciation of the facts and circumstances of the case, the point involved in the present case is that the vehicle in question is financed with the opposite parties from whom the complainant has got sanctioned a loan and a hire purchase agreement was executed between complainant as such the complainant is not a consumer of the opposite party . Reliance in this connection has been placed upon Tata Motors Finance Ltd. And Anr. Vs. Vikas Nanda & Ors. 2011(2) CPC 217 of the Hon’ble Haryana State Consumer Disputes Redressal Commission wherein it has been held that as vehicle was purchased under a hire purchase agreement, complainant was not a consumer . Further reliance has been placed upon Parmeswari W/o Ramakrishnana Vs. The General Manager, V.S.T. Service Station, The Branch Manager, Tata Finance Limited and the United India Insurance Company 2010(2) CPC 164 (NC) of the Hon’ble National Commission wherein it has been held that in the case of Hire purchase agreement, the complainant does not become a consumer and therefore, the complaint is not maintainable.
8 In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed with no order as to costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copies of the order be furnished to the parties as per rules.. File is ordered to be consigned to the record room.
Announced in Open Commission.
24.07.2024
