Orissa

Jagatsinghapur

CC/208/2021

Sri Srikant Samal - Complainant(s)

Versus

Branch Manager Indusind Bank& Others - Opp.Party(s)

Mr.S.K.Naik & Assoc

16 Sep 2022

ORDER

                                                                                        JUDGMENT

 

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite parties to pay compensation of Rs.3,70,000/- and to provide the no due certificate/NOC”.

            The brief fact of the case is that the complainant decided to purchase one AL 4019/1 to maintain his livelyhood and the opposite party No.1 agreed to finance the vehicle and financed Rs.11,80,000/- vide loan account No.CU 8636959 and contract No.OCE00321D and accordingly the complainant availed the vehicle vide Regd. No.OD-04-B-2603 by investing as down payment and the total payable amount will be paid in 56 monthly installments. There after the complainant used to pay the installments much or less in time and also paid some fines and other charges and requested the opposite parties for foreclosure and after due calculation and as per the instruction of the opposite parties within 30^th July, 2021 paid all the dues and the same has been certified by the opposite party No.1 and assured to provide the NOC very soon. In spite of giving NOC on 23.11.2021 the antisocial muscle men of opposite party No.1 & 3 came to the residence of the complainant and threatened to seize the vehicle.

            The opposite parties have appeared and filed their written version as stated below;

            The vehicle in question is a commercial one. Therefore, the complainant cannot be treated to be a ‘Consumer’ as defined in section 2(7) of the Consumer Protection Act, 2019. As per section 2 (d) (1) (ii) (Explanation) “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. The words “uses them by himself”, “exclusively for the purpose of earning livelihood” and “by means of self employment” make the intention of legislature abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelyhood. In this case whether the complainant is consumer in true sense of its definition or not and whether he purchased the vehicle for commercial purpose or for maintaining livelyhood by self-employment. As required under law, the complainants have not prima facie established the existence of any such fact that they were/are not in a position to maintain livelyhood and that the vehicle was their only source of income. Therefore, there is no need on the part of the opposite parties to prove the contrary. The complainant is guilty of suppression of facts and malicious misrepresentation. The fundamental maxim is that the plaintiffs in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle the complainant is not entitled to any relief as he has not come to this Commission with clean hands and has suppressed the material facts. The complainant has filed the case maliciously to get rid of the loan liability and to escape from the legal proceedings going to be initiated against him. The complaint is not maintainable as the loan agreement contains the clause for Arbitration and Territorial Jurisdiction.  The complainant intended to purchase a vehicle to use the vehicle for the enhancement of his running group business.  He had in due course approached to opposite parties for availing the requisite finance for the purchase of the said vehicle and opposite parties after proper consideration thereof agreed to finance an amount of Rs.11,80,000/- to the complainant by way of a duly executed a hypothecation agreement. As per agreement the complainant has been financed and in return the complainant has to pay the total agreement value sum of Rs.16,97,214.83. Subsequently the loan outstanding has been paid by the borrower resulting which the loan account has been closed but NOC not issued due to lien. Law is well settled in reference to the present dispute vide Section 171 of the Contract Act, 1872, wherein, the opposite party Bank is contractually empowered to combine all the loan accounts/lender is also further entitled to withhold no objection certificate (NOC) or no dues certificate (NDC) for recovery of the lender’s dues. As such opposite parties withhold the NOC in the matter, which cannot be characterized as deficiency in service. The complainant made a breach of contract by not adhering to the terms and conditions as agreed upon all the combined loan agreement in the group as agreed and made delay by not repaying the installments on the due dates in each month. The complainant issued the cheques are bounced due to insufficient of funds in his combined loan accounts. So the complainant is a regular defaulter.

            The complainant has not come to this Commission in clean hands. The opposite parties in its written version at para 12(B) has stated that complainant is given more than three commercial vehicles and has not submitted any heavy vehicle driving license stating that himself driving the said vehicle for his livelyhood. The said fact of the opposite parties has not been denied by the complainant.

            The simple grievance of complainant is to grant NOC against the vehicle bearing No.OD-04-B-2603 for which complainant has already cleared the loan.

            The agreement clause prepared and imposed by opposite parties cannot override the statutory rules. Since the complainant has already cleared the dues in respect of aforesaid vehicle, the opposite parties are directed to issue NOC within three weeks in respect of 1^st vehicle bearing Regd. No.OD-04-B-2603, Chassis No.MBITRTYB3DPXH4634, Engine No.DXPZ109752.  With the aforesaid observation and direction the consumer complaint is dispose of without any cost.   

 

            Pronounced in the open Commission on this 16^th Sept., 2022