Order No. 13 dt. 26/07/2017
The case of the complainant in brief is that the complainant purchased one Ashok Leyland truck being regn. no.WB-41F-2884 from o.p. no.4. The complainant at the time of purchasing of the said vehicle obtained loan from o.p. no.1. The complainant entered into a loan agreement and being in utter need of money the complainant put her signature on some blank papers as assured by the employees of o.p. no.1. The complainant was not informed as to what will be the loan amount, what will be the rate of interest, and what will be the amount repayable by the complainant to o.p. no. and how many months she will have to repay the loan. The said vehicle was insured with insurance company and she had to pay further investment of Rs.1 lakh per year towards the insurance charge. The complainant also stated that the said vehicle supplied by the dealer had been suffering from manufacturing defect and the vehicle was not at all in roadworthy condition and broke down frequently. It was also stated in the petition of complaint that the complainant purchased the vehicle for commercial purpose and since the vehicle did not work the purpose of the complainant was not fulfilled. The o.p. nos.1 and 2 in the mean time took possession of the vehicle because of non payment of EMI regularly. The complainant requested the o.ps. to release the vehicle but o.ps. did not take any action for which the complainant filed this case praying for direction upon the o.ps. to return the vehicle and also prayed for compensation of Rs.10 lakhs and Rs.5 lakhs for unfair trade practice.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the vehicle in question was admittedly purchased by the complainant for commercial purpose and as such, this Forum has no jurisdiction to entertain the case. It was further stated that the loan amount was provided to the complainant to the tune of Rs.18,50,000/- which was to be repaid by the complainant in 47 EMIs @ Rs.51,880/-. The o.p. no.1 also denied that they obtained any signature of the complainant in blank papers. The o.ps. also denied that the complainant paid EMI @ Rs.6,78,400/- to o.p. no.1. The o.p. no.1 categorically stated that as per the terms and conditions of the loan agreement it was stated that in case of non payment of the loan amount o.ps. have every right to take possession of the vehicle. The complainant never informed the o.p. nos.1 and 2 that the vehicle had the manufacturing defect at the relevant point of time. In the loan agreement it was also stated that in case of any dispute between the parties the matter would be referred to sole arbitrator and the arbitrator proceeding shall be in Chennai at the registered office of the company. In view of such background of the case o.ps. prayed for dismissal of the same.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant took loan from o.p. no.1 for purchasing the vehicle?
- Whether the vehicle was purchased for commercial purpose for self employment basis?
- Whether the complainant paid the EMIs regularly?
- Whether taking possession of the vehicle created any unfair trade practice on the part of o.p. no.1?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant being the owner of the said vehicle asked for loan from o.p. no.1 and in order to obtain loan she had to put her signature on some blank papers without knowing the contents of those documents. The complainant was never informed regarding the quantum of loan provided as well as the amount to be paid by the complainant in EMIs. The complainant paid a total amount of Rs.6,78,400/-, in spite payment of the said amount o.p. nos.1 and 2 took possession of the vehicle. Ld. lawyer further emphasized that since the date of purchase the vehicle had manufacturing defects for which the vehicle could not run resulting in failure of payment of EMIs to o.p. no.1. The said fact was informed to o.p. no.1. In spite of having such information o.p. no.1 with the help of others took possession of the vehicle. On the basis of the said fact the complainant had to file this case praying for releasing the vehicle in favour of the complainant as well as other reliefs.
Ld. lawyer for the o.ps. argued that the complainant in the complaint petition itself mentioned that she purchased the vehicle for commercial purpose which does not come within the purview of C.P. Act as per the provision laid down u/s 2(1)(d) of the said Act. It was further emphasized by ld. lawyer for o.ps. that the complainant put her signature on the loan agreement after going through the terms and conditions of the said agreement. It was decided that the total loan was sanctioned by o.p. no.1 to the tune of Rs.18,50,000/- and it was decided that the complainant would liquidate the said amount by paying 47 EMIs @ Rs.51,880/-. Since the complainant failed to pay the said amount as per the terms and conditions of the loan agreement, therefore the vehicle was taken possession of o.p. no.1. It was further stated that in the loan agreement itself it was mentioned that in case of dispute the parties should go for arbitration proceeding and the arbitration proceeding would be started in Chennai at the registered office of o.p. no.1. The complainant by suppressing the material fact filed this case; as such the same is to be dismissed.
Considering the submissions of the respective parties it is an admitted fact that the complainant applied for loan to o.p. no.1 and the loan was obtained by the complainant. The complainant in the petition of complaint categorically stated that she purchased the vehicle for commercial purpose. It is also found from the materials on record that the occupation of the complainant is service, therefore it cannot be said that the vehicle was purchased for self employment of the complainant. In view of said materials on record since if the complainant fails to prove that the vehicle was purchased for the purpose of self employment and the same was purchased for commercial purpose then this Forum has no jurisdiction to entertain the case as per Sec.2(1)(d) of C.P. Act. It is also relevant to mention here that the complainant claimed that she paid an amount of Rs.6,78,400/- but she failed to produce a single scrap of paper in support of her said contention. It is an admitted fact that the financer has every right to take possession of the vehicle on ground of non payment of installment and it is the legal right of the financer to take possession of the vehicle. In this respect we can rely on a decision as reported in 2017(2) CPR 95 (NC) wherein it was held that taking possession of vehicle on ground of non payment of installment is legal right of financer. If the vehicle is taken by o.p. no.1 we hold that no illegality was committed by o.p. no.1. It is also relevant to mention here that in the loan agreement it was specifically stated that in case of dispute the complainant could have raised her points of dispute before the arbitrator but the complainant did not avail of that remedy and rushed to this Forum by suppressing the material fact which clearly established the fact that this Forum has not no jurisdiction to entertain the case of the complainant, particularly when the complainant failed to prove that she purchased the vehicle for her self employment, on the contrary from the pleadings of the complainant in the complaint itself it was revealed that the vehicle was purchased for commercial purpose. In view of such perspective we hold that the case filed by the complainant is a misconceive one and the complainant will not be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.366/2015 is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
