Before the District Consumer Disputes Redressal Forum,
North 24 Parganas,at Barasat.
C.C Case No: 598/2016
Date of filing Date of Admission Date of disposal
21.09.2016 27.09.2016 02.01.2018
Complainant Vs Opposite Party
Ashis Kumar Gain, Cholamandalam Investment & Finance Co. Ltd
S/O Late Bharat Chandra Gain, 34 No. Jatiya Sarak
Vill: Kamarthuba, Krishnanagar Road
Nagarukhra Road, Noapara, P.S: Barasat
P.O & P.S: Habra, Kolkata-700125
Dist: North 24 Parganas
Pin- 743263.
Present: Sri.Bankim Chandra Chattopadhyay……………… President.
Sri. Siddhartha Ganguli………………………………….. Member.
Smt. Silpi Majumder………………………………………..Member.
Ld. Advocate for the Complainant: Sri.Pranab Biswas & Sri. Ananda Mohan Kundu.
Ld. Advocate for the Opposite Party: Sri. Sudipto Ganguly.
Final Order & Judgment
The instant case is filed by the complainant as above, u/s 12 of the C.P.Act,1986 praying for a direction upon the O.P to issue a N.O.C to the complainant in respect of his vehicle, which was hypothecated with and financed by the O.P company, after making full payment and for other reliefs for compensation and litigation cost, as prayed in the petition of complaint.
The gist fact of the case is that the complainant had purchased a vehicle (TATA SFC 709 Ex BS 111), being registration No: WB 25D 9969, Chassis No: MATA53131 B8D15307,Engine No: 497TC96DYY-819403 from Bhandari Automobiles Pvt. Ltd and made down payment of Rs.1,80,708/ and took financial assistance from O.P of Rs 8,80,708/ after entering into a loan agreement being No: XVFPKAT00000586411 and it was agreed by and between the parties that the complainant had to pay 47 numbers of E.M.I each of Rs.17,350/only.
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Member
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It is the allegation of the complainant that despite paying all 47 E.M.I, each of Rs.17, 350/ without any default, the O.P did not issuing ‘N.O.C or No Due certificate’ in favor of the complainant though the he made several requests to the O.P. The complainant sent legal notice on 18.07.2016 to the O.P, but the O.P did not pay any heed to and being dissatisfied with the service of the O.P the complainant filed this case for proper redressal and prayed for the following reliefs:-
Reliefs Prayed for:-
- An order directing the O.P to issue NOC in favor of the Complainant for his vehicle as soon as possible.
- An order directing the O.P to pay compensation of Rs.1,00,000/ to the complainant for mental agony, financial loses and charge of interest as per Bank’s rates of interst for delay in issuing N.O.C.
- An order as to cost of the proceeding.
The complainant in order to prove his case filed the following documents:-
- Xerox copy of registration certificate of the vehicle, being registration No: WB25D 9969.
- Xerox copy of payment receipts- 3 nos.
- Xerox copy of road tax receipt of the vehicle of the complainant.
- Xerox copy of loan agreement, being agreement No: XVFPKAT00000586411.
- Copy of legal notice dated 18.07.2016
The notice was sent to the O.P and the O.P appeared in the case on 05.01.2017 and filed Written Version subsequently on 06.04.17 by stating that he received the enclosures on 23.02.2017 and as such he files the W.V within 45 days from such receipt of enclosures.
In the W.V the O.P admitted the existence of the agreement of loan as stated above and it is also admitted by the O.P that the complainant paid all 47 E.M.I, each of Rs.17,350/ only, without any default and the O.P received all the E.M.I and issued receipts of the same, but the O.P denied that the loan amount was Rs.6,00,000/ not Rs.8,80,708/.
In the W.V the O.P further stated that the present complainant obtained another loan from the O.P being Loan Agreement No: XVFPBST00001191604 with a view to purchase one TATA XENON(RED) vide Registration No: WB 31F 3142 and the complainant did not pay the due amount in respect of his loan in that account and he has filed a case before this Forum against the said O.P by making some false allegations, being Case No: C.C-346 of 2016, which is still sub-judice.
In the W.V the O.P further stated interalia that as per clause 11(c)(i) of the agreement being No: XVFPKAT00000586411,it is categorically stated that “It is specifically agreed between the parties that the charge created by the Borrower and/or Guarantor as the case may be, with the company under any other agreement shall be continuous regardless of all the dues under the said agreement been paid and the company shall be liberty to withhold the No Objection Certificate (NOC) on even completed agreements and to repossess and sell the vehicle/assets, without intervention of courts, given to the Borrower/Guarantor, under any other agreements towards realization of dues payable under this agreement.”
In the W.V the O.P further stated that in case of failure to repay the loan of another vehicle the O.P shall have the right to sell both the vehicles of the complainant and as there is an arbitral clause in the agreement all the disputes between the parties shall be referred to the sole arbitrator at Chennai for arbitration and the arbitrator at Chennai shall have exclusive jurisdiction to try disputes between the parties and prays for dismissal of the case as there was no deficiency of service on the part of the O.P.
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Member
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The O.P with his W.V filed the following documents:-
- Copy of account statement from 30.04.2011 to 09.02.2017 of agreement No: XVFPKAT00000586411.
- Copy of account statement from 28.04.2014 to 09.02.2017 of agreement No: XVFPBST00001191604.
- Copy of agreement.
The Complainant filed Evidence on affidavit on 29.06.2017 in order to prove his case.
The O.P filed a prayer for treating the W.V as evidence of the O.P. The prayer has not been supported by an affidavit and therefore it cannot be read evidence of the O.P.
No B.N.A filed by the complainant. The O.P filed B.N.A
From the complaint petition, W/V, Evidence of the complainant and other materials on record the following points have been framed:-
- Is the complainant a consumer?
- In there any deficiency on the part of the O.P?
- Is the complainant entitled to get any relief/reliefs as prayed for?
-:: Decision With Reasons ::-
All the points are taken together for the sake of brevity and for avoidance of repetition of facts.
From the Evidence and other materials on record it is found that, it is the admitted position that the complainant and the O.P entered into an agreement, being agreement No: XVFPKAT00000586411, for the purpose of purchasing a vehicle being Registration No: WB25D 9969 by the complainant and for proving financial assistance for such by the O.P. In terms of the said agreement the complainant paid all 47 EMI, each of Rs.17, 350/ to the O.P and the O.P received the same. As all the EMI have been paid by the complainant, admittedly there is no due in respect of the said loan account. It is the allegation of the complainant that the O.P did not issue ‘NOC or No Due Certificate’ despite repeated request.
The O.P took the plea that the complainant availed another loan from him, being loan agreement No: XVFPBST00001191604 and the complainant has not paid all the dues/EMI in that loan account and took the plea of clause No: 11(c) (i) of the agreement being No: XVFPKAT00000586411 as stated above and also mentioned that the complainant has initiated another complaint case against the O.P, being C.C case No: 346 of 2016, in respect of another vehicle of the complainant and filed documents in support of his claim. We have gone through the agreement as stated above and found the existence of clause 11( c) (i) in the agreement which shall be abide by the parties. The complainant remained silent over the purchase of another vehicle and availing of a separate loan from the O.P and also existence of due amount in that loan account. The complainant also did not mention either in his complaint petition or his evidence regarding such factum of availing another loan from the O.P for purchasing another vehicle or nonpayment of such loan or existence or initiation of a separate complaint case as mentioned above.
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Member
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The complainant has not denied the same though he got the chance to deny of such factum as agitated by the O.P at the time of his giving evidence. So, we may presume that the complainant has suppressed something and he has not filed the instant case in clean hand.
From the documents filed by the complainant it is revealed that he has purchased a light goods vehicle by availing loan from the O.P, being registration number WB25 D 9969. The nature of the vehicle is a goods vehicle and its use must be commercial purpose only. The complainant in his complainant petition did not take the plea that he has purchased the vehicle for the purpose of earning his livelihood by means of self employment which is a sine qua non as provided in the definition of ‘consumer’ U/S 2(1)(d) of the C.P. Act 1986.
Again from the documents annexed by the complainant and the O.P and other materials of the record, it is found that the complainant is a businessman, as revealed from the loan documents filed by the O.P, and he has availed another loan from the O.P for purchasing another vehicle. Be it mentioned that though the complainant has taken loan for purchasing another vehicle, may it not be a commercial vehicle, but without taking any plea that he has purchased the vehicle in question, which is a commercial vehicle, for earning his livelihood by means of self employment the complainant cannot be treated as ‘consumer’ in view of the provisions of the C.P. Act, 1986 and on this score alone the case of the complainant is liable to be dismissed .From the documents annexed it is found that the complainant isengaged in vegetable selling business and the vehicle in question is a commercial vehicle. Nowhere the complainant stated that he has purchased the vehicle for earning his livelihood by means of self employment. It is the settled principle of law that commercial users are not consumers.
Therefore, having regard to the provision of the C.P. Act, 1986 and the materials on record, we are of the opinion that the complainant is not a ‘consumer’ and the instant case is not maintainable in the eye of law and the complainant is not entitled to get any relief from this Forum and the case is liable to be dismissed. The complainant may seek relief against the O.P from the competent court of law.
It is ordered that the instant case being No: C.C 598 of 2016 is dismissed on contest against the O.P.
No order as to cost.
Let free copies be given to the parties concerned.
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