The brief facts of the case is that the complainant has financed a truck bearing registration No.OR-09K-4854, Chassis No.373135ERZ119791 and Engine No.6977C56ERZ126588 amounting of Rs.5,70,000/-. During October, 2015 approached the local official of Opp. Party finance company for a financial assistance against the vehicle. The Opp. Party finance company after completion of all formalities sanctioned a sum of Rs.3,90,000/- against the hypothecated vehicle @ 11.19% interest to be repaid in 31 installments at the rate of Rs.16,805/- per month from 10.11.2015 to 10.05.2018. The vehicle met with an accident during 2018 and the complainant failed to pay certain installments of the Opp. Party Finance Company, but somehow she managed to pay more or less amount towards EMI. But suddenly the father-in-law of complainant fell ill for which around 1 lakh some odd amount could not be paid to the Op company. Complainant visited the local office of Ops who assured her to clear up all the dues till end of December,2018. After assurance complainant arranged money by hand loans from friends and repaired the vehicle. On 25.12.2018 while the vehicle was returning after unload of the Iron Ores at Nayagarh without any prior notice to the complainant the Op Finance Company forcefully taken away the vehicle to the stock yard of Op No.3. After this incident complainant contacted the Op party No.1 and they did not pay proper attention to complainant and demanded an amount of Rs.2,59,394/- for which the complainant is not liable. Complainant already paid of Rs.3,59,300/- as against the loan amount of Rs.3,90,000/- till seizure. On 26.12.2018 Ops sent a threatening letter to complainant demanding the arbitrary amount for payment within 7 days of receipt of notice.

So the complainant prayed for payment of the claim amount Rs.80,000/- along with Rs.50,000/- for mental agony and Rs.10,000/- towards litigation cost.

The complainant relied on the following documents to prove his case:-

1. Photo Copy of R.C. Book.
2. Photo copy of Payment Receipts
3. Photo Copy of  Notice dt.26.12.2018 of Opp. Party.

Under the above situation the complain case is admitted and notice issued to Ops. Op1 and 2 appeared and filed their written version but Op3 did not appear and not filed any written version so Op No. 3 was set Ex-parte.

Op1&2 insurance company submitted in its written version that the present complain petition is not maintainable. The complainant has not come with clean hands. The Ops further stated that as per the terms and conditions of the vehicle Loan Cum Hypothecation Agreement (hereinafter referred to as agreement) this Hon’ble Commission does not have the territorial jurisdiction to entertain this case. As per the clause which is a binding contract between the parties, only Chennai court shall have the jurisdiction to try the present complaint. As per the arbitration clause of the said Hypothecation Agreement between the parties hereto all disputes, differences, claims and question whatsoever arising out of this Agreement shall be referred to the Arbitrator. The complainant is a debtor and the relationship between the parties is that of a creditor. The dispute and differences between the debtor and creditor cannot be subject matter. As per the Judgment of Hon’ble NCDRC as reported in 2006(iii) CPJ 247 N.C. Which is well discussed and relied by the Hon’ble SCDRC, Odisha while deciding the case of Deepak Kumar Sahoo Vs Indusind Bank Ltd vide Judgment dtd.30.11.2009 this point has been well established. It is also discussed and decided in case of Mandal Plastic Industries Vs Bihar State Finance Corporation 1998(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.

Ops relied on the following documents

1. Copy of Agreement.
2. Copy of Letter Dated 05.10.16,23.03.17,08.08.17,02.12.17
3. Copy of Pre-Seizure & Post-Seizure Intimation to Police.
4. Copy of Pre-Sale Latter.
5. Copy of Sale Acceptance Letter.
6. Statement of Account till Repossession.
7. Statement of Account after sale.

On the above pleadings following issues are framed to decide the case:-

1. Whether the case is maintainable?
2. Whether any cause of action arises on this case?
3. Whether Ops have made any deficiency of service?
4. Whether the complainant is entitled to get any relief sought for?

FINDINGS

All the above issues are interlinked with each other so all issues are discussed together. It is found from the case record that the complainant has also filed a misc case praying to release the seized vehicle bearing registration OR-09-K-4854 and after going through the case record this commission allowed the interim petition directing Op1 to release the vehicle after receiving Rs.1,60,000/- from complainant and rest loan amount along with the charges if any of the alleged vehicle should be paid by the complainant after final hearing of the case. It is also directed not to make auction and resale the seized vehicle if not auctioned prior to this order. It is also found from the case record that the Ops insurance company have send various notice to the complainant to pay the outstanding dues if the complainant fails to make payment the Ops company is at liberty to disposed of the vehicle as per agreement. The submission of complainant regarding overt Act of Ops and compensation for loss sustain by complainant. As per the agreement No.XSHUKEO00001509162 the complainant is a debtor and answering Ops are creditor the relationship between the parties is that of a debtor and creditor which is outside scope and preview of the Consumer Protection Act. The dispute and difference between the debtor and creditor cannot be a subject matter of a petition of complaint before any Consumer Dispute Redressal Forum and as such the dispute does not fall within the scope and ambit of the C.P. Act. As per the Judgment of Hon’ble NCDRC, as reported in 2006(iii) CPJ 247 N.C. which is well discussed and relied by the Hon’ble SCDRC, ODISHA while deciding the case of Deepak Kumar Sahoo Vs Indusind Bank Ltd vide Judgment dtd.30.11.2009. It is also discussed and decided in case of Mandal Plastic Industries Vs Bihar state Financial Corporation (1998 (2) CPR 254). It is also submitted that the complainant is a chronic defaulter and has come to this Hon’ble Court in a vague and fabricated story. Many opportunities have been given by the Ops company to clear up the outstanding dues but the compliant did not turn up. So the Ops were compelled and constrained to dispose of the financed vehicle in order to save the company from further pecuniary loss. The company has also made intimation to Sadar Police Station Keonjhar before the seizer of the vehicle on dtd.23.01.2019. Before the filing of this case the Ops company has issued a sale acceptances letter in favor of Sabir Khan for Rs.1,90,000/- sale amount for the alleged vehicle No.OR-09K-4854.

From the above discussion this commission came to the conclusion that the Ops had not made any deficiency of service and this case is not maintainable. The complainant is not entitled to get any relief. The interim order passed earlier in misc case No.02/2019 is vacated.

ORDER

The complaint case being devoid of merits is dismissed without any cost.