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 a tractor. After sanction of the loan by the Ops-Bank, the complainant purchased one tractor with trolley from M/s Sai Engineering on 3.11.2004. The Ops-Bank had financed Rs.3,07,000/- only for the tractor and trolley. Thereafter, said tractor & trolley were registered before the local Authority vide Regd. No.OR-01G-3561 & OR-01G-3562 respectively. It was agreed between the parties that the complainant would repay the loan amount within 59 monthly EMIs with effect from 15.11.2004 to 15.9.2009. The complainant used to pay the instalment amount regularly before the Ops-Bank. At the time of sanction of loan, the complainant had deposited 10 nos. of blank cheques signed by him. It is further stated that due to some reasons, the complainant became defaulter in making payment of instalment dues. That apart, the said tractor also met with an accident and the major portion of it was damaged. The Insurance Company assessed the loss to the tune of Rs.27,000/- and a cheque for the same amount has been sent to the Ops-Bank. At this juncture, the Ops-Bank without any intimation seized the alleged tractor and trolley on 7.5.2007. It is further stated that on 1.12.2011, the complainant had received a letter from the Ops wherein they demanded Rs.1,84,449/- as outstanding for the trolley. When the complainant visited the office of OP No.2, there OP No.2 told that the said amount would be paid within 7 days otherwise they would present the blank cheques in the bank for recover the outstanding dues. By this attitude of the Ops, the complainant sustained mental agony so also deficiency of service.
The cause of action for the case arose on 17.12.2011, when the complainant received the illegal demand notice dated 1.12.2011 from OP No.2. Hence, this case.
3. In the present case, Ops made their appearance and filed their written version denying the averments made in the complaint. They have specifically challenged the maintainability of the case. It is stated that the complainant is not a consumer and he has no cause of action to file the case. Besides the above, it is stated by the Ops that the complainant had taken loan from the Ops-Bank with a view to purchase one tractor and trolley and it was hypothecated in favour of the Ops-Bank. It was also agreed between the parties that the complainant should repay the total loan amount of Rs.6,431/- within 59 instalments @ Rs.801/- per instalment. Further, it is stated by the Ops that the complainant failed to pay the instalments and became defaulter for which Ops-Bank issued notices for the purpose. Still then, the complainant did not repay the outstanding loan amount. Thus, the Ops-Bank was constrained to take possession of the vehicle on 5.5.2007 under intimation to the complainant. The complainant was intentionally defaulted in paying the outstanding dues of the Ops-Bank and with an oblique motive, he has filed this case with a view to harass the Ops-Bank. Hence, it is prayed to dismiss the case with cost.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. In the above peculiar facts and circumstances of the pleadings of both the parties, before delve into the merits of the case, first of all, it is to be decided as to whether the case is maintainable or not.
6. On perusal of the pleadings of both the parties and the documents relied upon by them, it is found that the complainant had taken the loan from Ops-Bank and purchased one tractor and trolley. It is an admitted fact that the complainant has not repaid the outstanding loan amount to the Ops-Bank. As the complainant did not repay the loan installments in due time, the Ops took possession of the tractor and trolley from the possession of the complainant. On the other hand, it is seen that Ops-Bank is the financier, from whom the complainant had taken loan for purchase of the tractor & trolley in question. Further, it is seen that the complainant has violated the terms and conditions of the agreement by not repaying the outstanding dues of the Ops-Bank. The complainant is silent about what kind of service the Ops-Bank has not been rendered. That apart, the complainant has availed the loan from the Ops-Bank and hence, he is the borrower.
7. In the above facts and circumstances of the case, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C) (Sunny & Others -vs.- Rajesh Tripathy) 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, Ops-Bank have the right to recover their 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 vehicle 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 Ops. The interim order, if any, passed in this case shall be treated as infructuous. In the facts and circumstances of the case, no order as to costs.
Pronounced in the open court of this Commission, this the 17th day of September, 2024 under my signature & seal of the Commission.
