SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the Ops.
2. The case of the complainant, in short, is that he applied for sanction of a loan for purchase of tractor. OP No.1 is the financer and OP No.2 is the Government sponsorer and OP No.3 is the dealer who had issued the quotation and delivered the vehicle. After sanction of the loan by the OP No.2, tractor along with its trolley was delivered to the complainant which were registered vide Regd. No. OR-01H-7519 and OR-01H-7520 respectively. It is stated that the statement of account obtained by the complainant from 2.9.2006 till 31.12.2010 reveals that there is an outstanding balance of Rs.10,55,174/-, but the subsidy amount of Rs.30,000/- has not been deducted from the principal loan amount. At the spur of the moment, complainant received a letter from OP No.1 wherein it is made out that the loan in question is a mortgage loan with an outstanding of Rs.2,16,812/- and the vehicle in question is used for commercial purpose. Further, OP No.1 issued a demand notice for payment of Rs.2,16,812/- within 10 days or else he will take possession of the vehicle as well as the mortgaged property. In the above facts and circumstances, the Ops have deliberately caused deficiency of service not only by issuing the letter of threat but also violating the Govt. Rules and procedures.
The cause of action for the case arose on 30.11.2010, when the OP No.1 issued the letter and threatened to repossess the vehicle. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of challan.
- Photocopy of quotation.
- Photocopy of certificate of road worthiness.
- Photocopy of registration certificate particulars of the vehicle & trolley.
- Photocopy of insurance policy bond in respect of the vehicle.
- Photocopy of permit in respect of the vehicle and trolley.
- Photocopy of fitness certificate.
- Photocopy of certificate-cum-policy schedule.
- Photocopy of letter issued by OP No.1.
- Photocopy of statement of Account.
3. On receipt of notice, the OP No.1 & 4 appeared and filed their separate written versions whereas OP No.2 & 5 did not choose to appear within the stipulated time for which they were set ex parte and the name of OP No.3 was deleted vide order dated 31.10.2011.
4. In his written version, OP No.1 has stated that the complainant has no cause of action to file the case and the case is not maintainable. He has denied the averments made in the complaint petition. This OP has stated, inter alia, that the complainant has applied for a mortgage loan before the Bank of India, Balasore Branch to purchase a tractor under Star Mortgage Loan Scheme on 14.12.2005 on the ground to support his leaf plate business. Accordingly, loan was sanctioned on 16.12.2005. Since the loan was a mortgage loan, the land and building of the complainant was mortgaged before the Bank. As the complainant did not repay the loan instalments, the account became NPA on 31.12.2010 for default of payment of dues and a sum of Rs.4,87,587/- was outstanding against him. Therefore, there is no negligence on the part of this OP in the matter nor his action can be construed as deficiency in service. Hence, it is prayed to dismiss the case with cost.
5. In his written version, OP No.4 has challenged that the complainant has no cause of action to file the case and the case is not maintainable. Further, the complainant has no claim or allegation against this OP No.4; so the complaint is barred by misjoinder of parties. This OP No.4 has placed the subsidy amount to the OP No.2 which was intimated to the complainant. So, this OP has no role to play in the matter. The complainant has filed this case with an ulterior motive only to harass this OP. Hence, it is prayed to dismiss the case with cost. In support of its case, OP No.4 has filed the letter dated 3.7.2006 issued in favour of OP No.1 which is marked as Annexure-A.
6. In the present case, the parties so also their representative lawyers remained absent since the year 2016 for which the case is lingering untouched. This is a case of the year 2011. In the above premises, this Commission is constrained to dispose of the case on merit. Hence, this order.
7. On perusal of the pleadings of the parties so also the documents placed on their behalf, it is found that the complainant had taken the loan under mortgage loan scheme, as per his application with a view to purchase one tractor to support his leaf plate business, not for agricultural purpose. As the complainant did not repay the loan installments, the account became NPA for default of payment and a sum of Rs.4,87,587/- was outstanding as on 31.12.2010. On perusal of Annexure-9 shows that OP No.1-Bank has issued the said letter to the complainant with a request to repay the overdue amount within 10 days otherwise their Bank shall take appropriate recovery action including taking over possession of the mortgaged property under SARFAESI Act. Annexure-A, submitted on behalf of OP No.4, shows that the subsidy amount has already been submitted to the OP No.1-Bank which was also acknowledged by the complainant. Thus, the OP No.4 has no role to play in the present case matter and the complainant has intentionally entangled him in this case.
8. In 2015(4) CPR-148 (N.C) in the case of Sunny & Others -vs.- Rajesh Tripathy, Hon’ble National C.D.R Commission, New Delhi have been pleased to observe that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, OP No.1-Bank has the right to recover his dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, taking possession of the mortgaged property on the ground of non-payment of instalment has always been upheld to be a legal right of the financer. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the OP No.1 & 4, on ex parte against OP No.2 & 5, but in the facts and circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 4th day of June, 2024 under signature & seal of the Commission.
