SMT. BANDANA ROY, PRESIDENT

            The gist of the complaint case is that the complainant took a loan of Rs. 11,00,000/- from the OP Company  with condition to repay the same in 46 installments at the rate of interest of Rs 13.5 %.  As per the agreement  No. XVFPKGR00000817849 the complainant has repaid the 46 installments of the loan. The time execution of the said agreement the OP Company took signature of the complainant on some documents.  Subsequently without any cogent reason the Co. seized the vehicle No. WB 31/5916, owned by the complainant. Immediately the complainant lodged a written complaint at the local police station, registered as GDE No.230/17 without assigning receipt of the same. Again the complainant informed the fact of such repossession of his vehicle to  local PS by registered post with A/C and also informed the SDO, SP and DM.  But none took any steps regarding the prayer of the complainant. Then the complainant filed a Misc. Case before the Sub-divisional   Magistrate vide Misc. case No. 74/17 u/sec 94 of the CrPC. The ld Magistrate issued order upon the police to investigate into the matter. The further case of the complainant is that in the agreement there is a clause i.e No. 29 and 30 wherein it is stated that decision will be taken at Chennai through Arbitration in presence of both parties amicably.  But no Arbitration proceeding started. When the complainant made contact with the office of the OP at Contai  Kishorenagar, they told him to pay Rs. 1,40,000/-  to settle the matter. The complainant did not agree as he already paid the entire 46 installments of the loan amount. The vehicle in question was the only source of livelihood of the old and weak complainant.

            So the complainant has filed this complaint alleging unfair trade practice on the part of the OP.

            The OPs No. 1 to 3 contested the case by filing  a joint written version and prayed for dismissal of the complaint case on various grounds of law and denied the  material allegations of the complaint.

            The specific case of the OP  is that  as per agreement No. XVFPKGR00000817849 the complainant took a loan of Rs. 11,000/- from the OP finance Co. The complainant agreed to pay interest @ RTs 13.51 % per annum  in 46 monthly installments of different  slabs  of amount starting from 01.11.2012 to 01.08.2016 as per repayment schedule. AS per clause 19 of the said agreement it was agreed that in case of any default of payment of installment , there would be additional interest to be paid by the complainant. It is the case of the OP that in spite of repeated reminders of the OP, the complainant failed to pay the overdue interest to the OP. Consequent thereto the OP filed Arbitration Case No. SB/Sept. 80/16  and the Ld. Arbitrator ordered for payment of Rs. 1,82,821/- to the Co. by the complainant and also passed an order for 18% interest on the awarded amount till realization  and so. In said award it was made clear that in case of failure on the part of the complainant the Co. will be entitled to repossess the vehicle.

            Under such circumstances, the OP prays for dismissal of the complaint case as there was no unfair trade practice or deficiency of service on the part of the OP Bank.

            Point to be considered in this case is whether the case is (1) whether the case is maintainable and (2) whether the complainant is entitled to get any relief or reliefs in this case.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version of the OP and all the documents filed by the parties and heard the submission of the ld advocates for both the parties.

 The OPs have challenged the claim of the complainant on the grounds that the complainant is not a consumer because in terms of Section 2(d) of the C P Act 1986  it is stipulated that a consumer  “ does not include a person who avails of such service for any commercial purpose.” According to the OPs  in the instant case the complainant  has availed the financial facility  for purchase of the commercial vehicle and the said vehicle is operated by appointing a regular driver. Further the complainant further represented that he is owner of another vehicle  for his business purpose which is evident  in the loan application executed by the complainant and for this ground the complainant is not entitle to get  any relief under the C P Act 1986.

It is also stated by the OPs  that the OP by filed  an Arbitration Case  being no. SB/SEF-90/16  and the ld. Arbitrator passed the order  “(a) that the Company has first charge over the said motor vehicle bearing Registration No. WB 31-5916 with all accessories thereon and entitled to possession thereof. (b)  that sum of Rs. 182821/- be  paid to the company by the said complainant (Surajit Das) (c)  complainant to pay interest on Rs 182821/- @ 24% p.a.  from the date of reference till publication of award. The OP i.e Finance Co. is further entitled for interest  on award @ 18% p a for the date of award till realization (d) COFCL to seize  and sell the vehicle and adjust the sale proceeds towards its claim. (e) that a sum of Rs.  10000/-  only be paid to the CIFCL by the complainant being the amount of cost referred herein and (f)  complainant are jointly and/or severally liable for the above payments.       

The Ops have stated that according to said award dated 21.10.2016 the Ops became entitled to repossess the disputed vehicle  after the above Arbitral Award. It is also alleged that the loan agreement  no. XVFPKGR 00000817849 dated 22.09.2012 contains  Arbitration Clause 29 where under  all disputed and differences arising out of touching or concerning the said agreement or in any way relating to or arising there from are to be referred to arbitration and the venue of arbitration shall be at Chennai.

The complainant has filed affidavit in chief, the OPs also filed questionnaires and complainant filed reply thereto.

 We have perused the affidavit  and the questionnaires.

Ld advocate for the Op referred to a decision reported in AIR 1995 (SC) page 1428 that Consumer Protection Act  Section 2(d) –Consumer -  Person who buys goods and uses them himself, exclusively for purpose of earning his livelihood by means of self-employment – is within the definition  of expression “Consumer” is question of facts and  to be decided  in the facts and circumstances of each case., 

We have perused the complaint and we find that there no  averment  by the complainant  that he took the loan of Rs. 1100000/-  for purchasing the vehicle for h is own livelihood and not for commercial purpose.  When the complainant has failed to take that plea in the complaint  there will be presumption that the loan was taken  and the vehicle was purchased  by the complainant for commercial purpose.

Copy  of certificate of registration  filed by the complainant shows that it is heavy goods vehicle and sitting capacity of the vehicle is four  including the driver.  That means the complainant appointed a driver  for funning the said vehicle i.e the truck.

The ld advocate for the OP also referred a decision reported ion 2010 CPJ 48 (NC) wherein it has been held that CPAct  1986 – Section 29 (i)(g)  banking  and Financial Services – Hypothecation agreement – Vehicle financed –payment of installments defaulted – vehicle  repossessed  by OP – Release of vehicle on payment  of dues directed by Fora below – Op at liberty to  re-possess  vehicle on complainants’ failure to  pay balance .

Besides that it appears  that there is already an award  of Arbitration in the present case by one Sourav Bandopadhyya , Ld arbitrator Advocate.  The arbitration proceeding was held on 14.09.2016  concluded on 04.10.2016 and award was made on 21.10.16.

We know that  there is a specific provision  in the Arbitration Act to prefer Appeal  for setting aside  the award of the Arbitration. But without doing so, the complainant has filed the present case  before this Forum in the yer 2017 challenging the award , in paragraph 6 of the complaint.  It was held in 2015 (4) CLT 422 (MP) that once a matter is referred to the Arbitrator and award is passed by the Arbitrator then the complaint the District Forum , under the CPACt 1986  is not maintainable.

Ld advocate for the complainant referred decisions reported in 2007 2 C Cr.LR. (SC) 315,  2015 (2) CPR 375 (NC) 2010 (4) CPR 214 to 216 and 2017 (3) CPR 336 (NC) in support of the case of the complainant. Having gone through the facts and circumstances of the cases, referred we are of the view that those are not applicable in the case in hand in any way.

Accordingly we are of the view that considering the facts and circumstances  of the case it appears that the complainant is not entitled to get any relief from the Consumer Forum according to C P Act 1986.

            Both the points are answered accordingly.       

            Hence, it is

O R D E R E D

That CC/261 of 2017 be and the same is  dismissed on contest against the OPs.

Parties to bear their respective costs.

Let copy of the judgment be supplied to all the parties free of cost.