The complainant being an educated and unemployed person by taking financial help from his relatives purchased one 2nd hand 10 wheeler TATA Truck bearing Regd.No.OR-09-9326 from one Mayadhar Patra of Joda to maintain his livelihood and at the time purchase the cost of the vehicle was Rs.7,50,000/- . During March-2017 to make the vehicle road worthy the petitioner approached the local official of OP Finance Company for financial assistance against the vehicle. After completion of all formalities the OP sanctioned a sum of Rs.5,00,000/- against the hypothecation of vehicle with interest to be paid in 36 monthly instalment @Rs.20,015/- from 28.03.2017 to 28.03.2020. Accordingly the complainant went on paying the monthly instalment as per agreement though copy of agreement and payment schedule not yet supplied to the complainant.
During 2018 the vehicle required major repair and was not in running condition the payment of monthly instalment was due against the vehicle up to Dec.2018 till seizure. The complainant intimated the fact to the local official of Ops who assured him to clear-up all the dues till end of Jan 2019. Getting assurance from the authority complainant brought the vehicle on road during end of Dec 2018. On dt.05.01.2019 while the vehicle was moving for taking load of Iron Ores from the dumping yard at Kumudi near Suakati in the district of Keonjhar without any prior notice of the OP finance company, the agent and recovery staff forcibly taken away the vehicle from the driver without knowledge and consent of the complainant. On request of the driver they did not provide the seizure list and driven away the vehicle to a secret place. After two days of enquiry the complainant could able to know that his vehicle was kept in the stock yard of OP.No.3. On receipt of such information the complainant contacted the OP.No.1 and other official and offered to pay the pending instalments the OP.No.1 did not pay any attention and demanded an amount of Rs.3,62,599/- for which the complainant is not at all liable where the outstanding EMIs dues till illegal seizure of the complainant’s vehicle amounting to Rs.79,575/- vide their notice on dt.07.01.2019.That law is well settled that Finance Companies or their agents cannot forcibly take away the hypothecated assets for non payments of instalments. Just after 2 days of seizure i.e. on dt.07.01.2019 the Finance Company sent a threatening letter to the complainant demanding the arbitrary amount for payment within 7 days of receipt of the notice and also threatened to dispose of the vehicle if not paid. The complainant rushed to the office of OP finance company and requested them to give a copy of payment schedule and copy of agreement but they clearly denied. From reliable sources the complainant could able to know that the OP have made a secret arrangement to sell the vehicle to their own people in less price for their illegal gain and to cause heavy loss to this complainant. As such a separate petition is filed for an interim direction to release the vehicle to the complainant on receipt of amount against the defaulted EMIs and the complainant is also ready to pay the other demand of the OP i.e additional interest of Rs.1455/- and repossession charge of Rs.12,980 in total of Rs.94,010/- and also agreed to pay future instalments in due time. The overact of the Ops put the complainant to heavy financial loss as the said hypothecated asses is only means of livelihood of the complainant and in case the vehicle is not released the family of the complainant will put to starvation. The complainant became bound to file this complaint incurring further litigation expenditure and hence the OP Finance Company is also liable for the same.
Under the above facts and circumstances the complainant prayed to direct the OP Finance Company to pay the loss of the complainant caused due to overact of the OP and to release the vehicle with cost and compensation as assessed (1) Financial loss @Rs.2000/- per day from the date of seizure to date of 05.01.2019 till filling the case i.e on dt.13.02.2019=39 days amounting to Rs.78,000/- (2) cost of Litigation amounting to Rs.10,000/- and (3) compensation for mental agony and harassment for Rs.50,000/- which comes to Rs.1,38,000/-.If the OP fails to release the alleged vehicle on receipt of the agreed amount the OP may be directed to pay the total cost of the vehicle of Rs.7,50,000/- along with Rs.1,38,000/- towards cost ,compensation and financial loss totalling to Rs.8,88,000/-. The OP No.3 may kindly be directed to bear the cost of damage of the vehicle if found during release as he kept the vehicle open to sun and shower causing damage to the vehicle.
The complainant relies upon the following documents:
- Photocopy of R.C. Book duly self attested.
- Photocopy of Payment receipt.
- Photocopy of Notice on dt.26.12.2018 of OP.
Under the above complain the case was admitted and notice issued to Ops. In their written version the Op.1 & 2 denied each and every averments and allegations made in the complaint as the complainant has not come with clean hands. The Ops stated that as per set out in the terms and conditions of the Vehicle loan cum hypothecation Agreement this Hon’ble Forum does not have the territorial jurisdiction to entertain the present complaint. As per binding contract between the parties only Chennai Courts shall have the jurisdiction to try the present complaint. The complainant is a debtor and this answering Ops are a creditor which is outside the scope and purview of the Consumer Protection Act. As per judgement of Hon’ble NCDRC as reported in 2006 (iii) CPJ 247 N.C which is well discussed and relied by the Hon’ble SCDRC, Orissa while deciding the case of Deepak Kumar Sahoo Vrs Indusind Bank Ltd. Vide judgement dt.30.11.2009, this point has been well established. It is also discussed and decided in case of Mandal Plastic Industries Vrs Bihar State Financial Corporation1998(2) CPR 254 with regard to grant of loan by Financial Institution it was held that the borrower is not a consumer under the Act. Thus the complaint is liable to be dismissed on this ground. When there is an alternative Redressal Forum of Arbitration as per Agreement between the parties, complaint filed against the Financer is not maintainable.
The Ops submitted that the complainant has admitted to be a chronic defaulter as such the Ops have committed no error rather due to breach of contract by the complainant the financed asset was repossessed in accordance with the terms and conditions of the contract/agreement. It is false to allege that the OP No.1 did not pay any attention rather the complainant has come to this Hon’ble Court with some vague and fabricated pleas only to draw the sympathy of Court. It is submitted that due to latches of the complainant, the vehicle in question was repossessed and in spite of many more opportunities, when the complainant did not turn up to clear up the outstanding dues, the Ops were compelled and constrained to dispose of the financed vehicle in order to save the company from further pecuniary loss. It is pertinent to mention here that the vehicle in question has been repossessed and disposed of in accordance with proper procedure and provisions of law and the contract executed between the parties at the time of disbursal of loan. The present case has been filed only to harass the Ops and to grab public money by investing which the OP Financer runs its finance business, hence the name of the Ops be struck off from the complaint petition. In the above circumstances, the present complaint petition be dismissed against these Ops being devoid of merits.
The Ops relies upon the following documents.
No document encloses.
On the above pleadings the following issues are framed to decide the case.
- Whether the case is maintainable?
- Whether any cause of action arises on this case?
- Whether Ops have made any deficiency of service?
- Whether the complainant is entitled to get any relief sought for?
FINDINGS
All the issues are inter-related to each other. So they are discussed jointly to decide the case. On dt. 05.01.2019 the said vehicle bearing Regd. No. OR-09-9326 was repossessed by the OP Finance Company and sent to the custody of OP.No.3 Ganga Stock yard. The complainant filed a misc .case bearing No.03 of 2019 praying to release the alleged vehicle. This Commission after perusing the case records directed to Ops to release the vehicle after receiving Rs.1,00,000/- (Rupees one lakh) only from the complainant towards arrear dues. In this connection the Ops did not released the vehicle and not complied the order of this Commission for which the complainant filed a violation misc.case bearing No.01 of 2019 under Sec.27 of C.R Act 1986.
On the above circumstances the OP Finance Company raised a question regarding chronic default by complainant and also submitted that the relation between the parties is that of a debtor and creditor which is out set the scope and purview of consumer protection Act. All the disputes between the parties shall be referred to the Arbitrator as per the Agreement. The citation submitted by the OP in Mandal Plastic Industries Vrs Bihar State Financial Corporation1998 (2) CPR 254 with regard to grant of loan by Financial Institution it was held that the borrower is not a consumer under the Act. The OP also submit that when the complainant did not turn up to clear up the outstanding dues , the Ops were compelled and constrained to dispose of the financed vehicle in order to save the company from further pecuniary loss. It is pertinent to mention here that the vehicle in question has been repossessed and disposed of in accordance with proper procedure and provisions of law. There is a question arises that on which date the alleged vehicle was auctioned/disposed of by the Ops and neither party has filed any document regarding it. The complainant demanded that the OP 1 & 2 did not received the amount of Rs.1,00,000/- (Rupees one lakh) only to release the vehicle as per interim order but no proof or documents filed by the complainant. This Commission comes to conclusion that this Commission has no jurisdiction to decide the case as the matter is between debtor and creditor which is beyond the purview of C.P. Act. There was a separate Arbitration Tribunal to decide the dispute/differences, between the parties. So this case is not maintainable. There is no cause of action arises in this case. The Ops have not made any deficiency of service or unfair trade practice. The complainant is not entitled to get any relief.
ORDER
The complaint case being devoid of merits is dismissed without any cost. The interim order passed earlier bearing No. IA 03 of 2019 is vacated and violation misc case bearing No.01 of 2019 has no merits to pass any order.
