PER:

Charanjit Singh, President;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11, 12 against the opposite parties on the allegations that the complainant got financed one Trolla i.e. 10 Tyres vehicle from the opposite parties bearing registration No. PB-46-M-5277 for the purpose of earning livelihood for himself as well as for his family members for a sum of Rs. 7,17,690/-. Thereafter, the complainant started paying regular installment of Rs. 24,300/- per month as per settlement between the complainant was well as opposite parties. The complainant regularly paid monthly installments to the opposite parties and the last installment was paid by the complainant to the opposite party in the month of December 2016, but thereafter, due to some financial problem and unavoidable circumstances in family, the complainant could not pay the installments of said Trolla/ vehicle in question to the opposite parties and as such, after that the complainant approached the opposite parties and  as such after that the complainant approached the opposite parties and requested them to further start receiving regular installments from the complainant but the concerned employees/ officials  of opposite parties did not pay any heed to the request of the complainant. Instead of listening the genuine and legitimate requests of complainant and instead of receiving the amount of installments from the complainant, the officials of the opposite parties without giving any notice/ intimation and without adopting any due course of law have illegally and unlawfully sanctioned the above said vehicle/ trolla from the complainant on January 2017  by using their power and force. Thereafter, repeatedly the complainant approached the opposite party with the request to receive the installment and to release / handover the said vehicle/ trolla of the complainant but the opposite parties have refused to release the trolla/ vehicle in question in favour of complainant intentionally, willfully and unlawfully and also started giving threats to the complainant to further illegally sold out the said vehicle, to which the opposite parties have no right, title or interest at all. Since January 2017, the above said trolla is lying in the custody of opposite parties illegally and unlawfully and they have failed to release the same in favour of complainant intentionally and willfully and on account of said wrongful act of the opposite parties, the complainant is suffering great loss and the condition of his above said vehicle i.e. trolla is deteriorating day by day on account of its non plying on the road and on account of huge weight of the said trolla its tyres have also been damaged and the complainant is suffering a lot on account of above said wrongful act of the opposite parties.  The complainant is ready to pay the regular monthly installments to the opposite parties and in this respect complainant requested the opposite parties on various occasions and also requested to release the above said vehicle to the complainant, but the opposite parties have flatly refused to pay any heed to the said request of the complainant which itself reflects the malafide and dishonest intentions of the opposite parties. The complainant has prayed that the complaint may please be accepted thereby issuing necessary directions to the opposite parties to return the said 10 Tyres Trolla/ vehicle in question to the complainant immediately and also to fulfill the losses suffered by the complainant and further requisite compensation of Rs. 1,00,000/- may also be given to the complainant. The costs of litigation be also given to the complainant.

3        After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version and contested the complaint by interalia pleadings that the present complaint is not maintainable, since the subject matter of the complaint i.e. the vehicle in question has already been sold by the opposite parties after giving due notice to the complainant as the complainant had failed to pay the loan installments after repeated notices and reminders. The sale proceeds of the said sale has been adjusted in loan account of the complainant and now sum of Rs. 4,83,141 as on 13.4.2017 is outstanding due in the books of account of opposite parties maintained by the opposite parties in the usual and ordinary course of business. The loss after sale notice also sent to complainant. The  complainant has approached this commission with unclean hands by not disclosing and misrepresenting material facts. The present complaint is false, frivolous, misconceived and vexatious in nature and has been filed with the sole intention of harassing of opposite parties. The present complaint is a gross abuse of process of law and is liable to be dismissed with costs. The complainant has not disclosed in his complaint that he has committed default in paying the loan installments to the opposite parties. Despite of repeated requests and reminder of the opposite party to the complainant to repay the installments and has never replied to the demand notices issued by the opposite parties. The complainant realizing that he cannot repay the loan installments  and he himself handed over the loan vehicle to the company without any pressure or force from the opposite parties in order to enable the opposite party to recover the loan amount after selling the same. The opposite parties are providing commercial vehicle loan to its customers. the complainant had taken the loan from the opposite party for the purchase of a vehicle i.e. one Trolla i.e. 10 tyres vehicle which was used by the complainant for commercial purposes only. The complainant is not a customer as defined under the Consumer Protection Act. The complainant had willfully signed the loan agreement which contains the arbitration clause stating that in the manner of any dispute between the parties the same shall be referred to Arbitration. Therefore, this clause ousts the jurisdiction of the consumer commission. The opposite parties further seeks the leave of this commission to refer and rely upon the loan agreement and the correspondence issued by opposite parties to the complainant. Contrary to the stand taken by the complainant of non performance/ deficiency in service, the opposite party’s claims this opportunity to apprise the commission of the fact that complainant had signed the loan agreement after fully understanding & deliberating upon the terms and conditions of loan agreement. The opposite party’s has taken all the necessary precautions and has kept the complainant adequately informed about the terms and obligations of the loan agreement. The complainant has termed their negligent and callous acts, as non performance/ deficiency in service by the opposite party. No cause of action has arisen in favour of the complainant to file the present case. The opposite parties have acted strictly on the basis of the terms and conditions contained in the loan agreement. The present case has been filed by the complainant with malafide intention, and further to grab the public money. The relief sought in present complaint is in violation of the terms and conditions of the loan agreement. Therefore, the complaint is liable to be dismissed with exemplary costs. The complaint is the misuse of the legal process. The present complaint was filed only with the motive to harass the opposite parties. The complainant has no locus standi and cause of action to file the present complaint. The complainant had taken the loan from the opposite party for the purchase of a vehicle i.e. one Trolla i.e. 10 tyres vehicle which was used by the complainant for commercial purposes only. The complainant got financed an amount of Rs. 7,17,690/- on 30.7.2015 by the opposite parties which was to be paid to the opposite parties in 41 equal monthly installments of Rs. 24,300/- as per the schedule attached to the loan agreement. The loan was granted to the complainant by the opposite party as per the terms and conditions mentioned in the loan agreement was read over and executed by the complainant at the time of taking the loan. At the time of signing the loan agreement the complainant gave assurance that he will not default in repaying the monthly installments on time as per the terms and conditions of the loan agreement. The complainant is defaulter as he was not paying the installments regularly as per the terms and conditions of the agreement. Statement of account of the loan account of complainant clearly shows the EMI’s were not paid by the complainant regularly and default committed  by him. The opposite parties had issued demand notice dated 13.12.2016 to the complainant recalling the overdue / default amount of loan but the complainant never paid any heed to the said demand notice.  The complainant was never regular in paying the loan installments to the opposite parties. In pre sale notice dated served on 18.1.2017 posted on 21.1.2017 by the opposite parties, time of seven days was given to the complainant to pay the outstanding amount to the complainant, failing which opposite parties shall take the steps to initiate the sale proceedings of vehicle. The complainant never replied to the said notice nor ever came forward to make payment of the outstanding amount. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. 

4        The complainant has tendered in evidence affidavit of complainant Ex. CW1/A along with documents i.e. R.C Ex.C-1, copy of payment receipts Ex. C-2 to C-4 and closed the evidence. On the other hands, Ld. counsel for the opposite parties tendered in evidence affidavit of Sh. Arun Kumar Legal Manager Ex. OP1,2/1, copy of loan agreement Ex. OP1,2/2, copy of loan application Ex. OP1,⅔, copy of legal notice by Advocate Rajesh Bhura Ex. OP1,2/4, copy of the pre seizure intimation form 4 to Police Station dated 15.1.2017 having postal receipt Ex. OP1,2/5, copy of the pre seizure intimation to police station form 5 dated 15.1.2017 having postal receipt Ex. OP1,2/6,  copy of inventory of vehicle Ex. OP1,2/7, copy of the pre sale letter to the customer alongwith postal receipt Ex. OP1,2/8, copy of legal notice by N. Anandhan Advocate Ex. OP1,2/9,  copy of notarised copy of resolution Ex. OP1,2/10, copy of the power of attorney Ex. OP1,2/11 , statement of account Ex. OP1,2/12 and closed the evidence.

5        We have heard the Ld. counsel for the parties and have carefully gone through the record.

6        Ld. counsel for the complainant contended that he got financed one Trolla i.e. 10 Tyres vehicle from the opposite parties bearing registration No. PB-46-M-5277 for the purpose of earning livelihood for himself as well as for his family members for a sum of Rs. 7,17,690/-. The complainant started paying regular installment of Rs. 24,300/- per month as per settlement. The complainant regularly paid monthly installments to the opposite parties and the last installment was paid by the complainant to the opposite party in the month of December 2016. Thereafter, due to some financial problem and unavoidable circumstances in the family, the complainant could not pay the installments of said Trolla/ vehicle in question to the opposite parties. The complainant approached the opposite parties and requested them to further start receiving regular installments from the complainant. The concerned employees/ officials  of opposite parties did not pay any heed to the request of the complainant. Instead of listening the genuine and legitimate requests of complainant and instead of receiving the amount of installments from the complainant, the officials of the opposite parties without giving any notice/ intimation and without adopting any due course of law have illegally and unlawfully sanctioned the above said vehicle/ trolla from the complainant on January 2017  by using their power and force. The complainant approached the opposite party with the request to receive the installment and to release / handover the said vehicle/ trolla of the complainant but the opposite parties have refused to release the trolla/ vehicle in question in favour of complainant and also started giving threats to the complainant to further illegally sold out the said vehicle, to which the opposite parties have no right, title or interest at all. Since January 2017, the above said trolla is lying in the custody of opposite parties illegally and unlawfully and they have failed to release the same in favour of complainant intentionally and willfully.  He further contended that the complainant is ready to pay the regular monthly installments to the opposite parties and in this respect complainant requested the opposite parties on various occasions and also requested to release the above said vehicle to the complainant, but the opposite parties have flatly refused to pay any heed to the said request of the complainant and prayed that the present complaint may be allowed.

7        On the other hands. Ld. counsel for the opposite parties contended that the present complaint is not maintainable, since the subject matter of the complaint i.e. the vehicle in question has already been sold by the opposite parties after giving due notice to the complainant as the complainant had failed to pay the loan installments after repeated notices and reminders. The sale proceeds of the said sale has been adjusted in loan account of the complainant and now sum of Rs. 4,83,141 as on 13.4.2017 is outstanding due in the books of account of opposite parties maintained by the opposite parties in the usual and ordinary course of business. The loss after sale notice also sent to complainant. Despite of repeated requests and reminders of the opposite party to the complainant to repay the installments and has never replied to the demand notices issued by the opposite parties. The complainant realizing that he cannot repay the loan installments  that he cannot repay the loan installments and he himself handed over the loan vehicle to the company without any pressure or force from the opposite parties in order to enable the opposite party to recover the loan amount after selling the same. The opposite parties are providing commercial vehicle loan to its customers. the complainant had taken the loan from the opposite party for the purchase of a vehicle i.e. one Trolla i.e. 10 tyres vehicle which was used by the complainant for commercial purposes only. The complainant is not a customer as defined under the Consumer Protection Act. The opposite party’s has taken all the necessary precautions and has kept the complainant adequately informed about the terms and obligations of the loan agreement. The opposite party’s has acted strictly on the basis of the terms and conditions contained in the loan agreement. The relief sought in present complaint is in violation of the terms and conditions of the loan agreement. Therefore, the complaint is liable to be dismissed with exemplary costs. The complainant has no locus standi and cause of action to file the present complaint. The complainant had taken the loan from the opposite party for the purchase of a vehicle i.e. one Trolla i.e. 10 tyres vehicle which was used by the complainant for commercial purposes only. The complainant got financed an amount of Rs. 7,17,690/- on 30.7.2015 by the opposite parties which was to be paid to the opposite parties in 41 equal monthly installments of Rs. 24,300/- as per the schedule attached to the loan agreement. The loan was granted to the complainant by the opposite party as per the terms and conditions mentioned in the loan agreement was read over and executed by the complainant at the time of taking the loan. At the time of signing the loan agreement the complainant gave assurance that he will not default in repaying the monthly installments on time as per the terms and conditions of the loan agreement. The complainant is defaulter as he was not paying the installments regularly as per the terms and conditions of the agreement. Statement of account of the loan account of complainant clearly shows the EMI’s were not paid by the complainant regularly and default committed  by him. The opposite parties had issued demand notice dated 13.12.2016 to the complainant recalling the overdue / default amount of loan but the complainant never paid any heed to the said demand notice.  The complainant was never regular in paying the loan installments to the opposite parties. In pre sale notice dated served on 18.1.2017 posted on 21.1.2017 by the opposite parties, time of seven days was given to the complainant to pay the outstanding amount to the complainant, failing which opposite parties shall take the steps to initiate the sale proceedings of the vehicle. The complainant never replied to the said notice nor ever came forward to make payment of the outstanding amount and prayed for dismissal of the same.

8        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 and opposite parties, 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 the 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.

9        In view of the above discussion, we do not find any merit and substance in the complaint and the same is hereby dismissed with no order as to costs. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

07.09.2022