DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Dated the 28th day of July, 2018
C.D. Case No. 61 of 2017
Balaram Upadhyaya
S/O Abhiram Upadhyaya
Vill- Bagamara
Po- Geltua
Ps/Dist- Bhadrak
………Petitioner/Complainant
Versus
1. Cholamandalam Investment and Finance Co. Ltd.
Represent through
Branch Manager
At- By-pass (Behera Market Complex 3rd Floor)
Po/Ps/Dist- Bhadrak
2. Smt. Rajalaxmi Upadhyaya
W/o Balaram Upadhyaya
Vill- Bagamara
Po- Geltua
Ps/Dist- Bhadrak
………………Opposite Parties
For Complainant - Sri A. Chand & Others
For OP No- 1 - Sri Dhirendra Kumar Ray & Others
Date of Hearing -29.11.2017
Date of Order - 28.07.2018
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency in service and unfair trade practice against the O.Ps.
The brief facts leading to the filing of this complaint are that the complainant had purchased one truck (L.P.T 2518) of Tata Motors Ltd. Bearing Regd. No- OR-22E-1103 ,Chassis No- MAT452025AIK34697 Engine No- 697TC68KZYI29044 for earning his lively hood. The said truck was engaged for carrying and transporting flour and wheat products from one place to another place. The said truck is a second hand truck purchased from Satyabrata Dixit on 08.02.2017 on payment of Rs 8,00,000/ (Eight lakhs only). The said truck required major repairing and for repairing complainant had applied for a loan to O.P No.1 and availed a loan of assistance of Rs 5,37,801/- (Five lahks thirty seven thousand and eight hundred one) on 07.03.2017 from O.P No.1. The agreement of the loan was the complainant shall pay a monthly installment of Rs 21,255/ and accordingly the first installment was paid on 28.03.2017 by the complainant. Thereafter the complainant went on depositing the installments and the said transactions have been reflected in the statement of accounts provided by the OP No. 1. The OP No. 2 is the guarantor of the aforesaid loan.
That the complainant also alleged that on 20.07.2017, when the truck was loaded with Atta the hooligans of OP No. 1 forcibly by threatening the driver took away the loaded truck from Dahanigadhia Bhadrak. They also provided a repossession certificate. The complainant states that the valuation of the truck is more than Rs 1,20,000/- but the OP No. 1 falsifying the account snatched away the truck without serving any prior demand notice. The investment is much less then the valuation of the truck and the OP No. 1 is not owner of the said truck. The complainant has further alleged that the OP No. 1 is not legally entitled to dispossess the complainant from the possession of the truck.
Hence the complainant has sought for the reliefs-
1. The O.Ps be restrained from selling away or alienating the vehicle in the question.
2. The O.Ps be directed to submit the true and faire accounts before the Hon’ble Forum.
3. The O.Ps be directed to return back the truck in question to the possession of the complainant.
4. The O.Ps be directed not to charge the interest from the complainant from the date of repossession till the date of release.
5. The O.Ps be directed to pay Rs 50,000/- to the complainant towards compensation for mental agony & Rs 10,000/- towards cost of the litigation.
The complainant has filed following Xerox copies of documents in support of his claim:-
1. Agreement dt. 22.03.2017- 2 sheets.
2. R.C No. OR-22E-1103- 1 sheet.
3. Letter of OP No. 1 dt. 24.07.2017- 1 sheet.
4. Seizure letter dt. 21.07.2017- 1 sheet.
5. Statement of account- 2 sheets.
6. Citation of Supreme Court- 4 sheets.
7. Notice to surrender the certificate of registration for cancelation and
issue of the fresh registration certificate in the name of the financer- 1
sheet.
8. Three numbers of postal registration receipt- 3 sheets.
9. Advocate and Commissioner of oaths- 2 sheets.
10. Legal notice on 14.11.2017- 2 sheets.
O.P No.1 resisted the complaint by filing written version and contested the claim that, the OP No. 1 is a registered Non Banking Finance Company duly incorporated under the companies Act 1956 having its registered office at “Dare House”, 2nd Floor, Old No. 234, New No. 2, N.S.C Bose Road, Chennai and State Office at 553, Annapurna Complex, Lewis Road, Bhubaneswar, Ps- Badagada and one of its Branch Office is at By-pass (Behera Market Complex 3rd Floor), Bhadrak, Po/Ps/Dist- Bhadrak. The OP No. 1 has admitted that the complainant has run a transport company for carrying and transporting flour engaging his own two trucks besides trucks from some other owners thereby maintain a fleet of commercial vehicles. The complainant owns and operates this vehicle purely for commercial gain and not for earning livelihood. There is neither any deficiency in service nor unfair trade practice made by this opposite party financer. In absence of the deficiency in service or unfair trade practice the consumer complaint is unsustainable in the eye of law. The petitioner/complainant, is not a consumer as defined U/s 2 (d/(o) of the Consumer Protection Act 1986.
The OP No. 1 has also challenged the maintainability of the case in this Forum. Both parties have executed the agreement that in which the complainant has spherically agreed that the disputes if any between the parties have to be referred to the sole arbitrator for arbitration. The complainant has also agreed in the jurisdiction for litigations arising out of the agreement. Besides, this agreement has been accepted and executed and finalized by the company at Chennai and all covenants, terms and conditions hereof including payments shall be observed and performed at Chennai. It is apt to mention here that the answering opposite party has already filed an application U/s 8 read with Sec- 5 of the arbitration and conciliation may be treated as a part of this petition for brevity and to avoid repetition. The complainant upon availing this loan of Rs 5,60,000/- in respect of the case vehicle has very cunningly under the garb of breakdown-repairing of the vehicle defaulted in paying the dues notwithstanding repeated requests/reminders/notices. Finding no way out the OP No. 1 company seized the vehicle from the possession of the complainant on dt. 21.07.2017 with prior and post occurrence intimation to police and collected acknowledgement (copy annexed) thereof besides issuing inventory (copy annexed) to the complainant/ borrower as per clear terms of the mutually signed loan agreement in compliance to the statutory formalities. It is out and out false to allege that the case vehicle was seized engaging hooligans as the OP No. 1 company is a reputed non Banking finance company having operation in all over India and guided by the regulation of the Apex Bank i.e the Reserve Bank Of India. As such against any Act of hooliganism the borrower should have moved a police complaint and not a consumer complaint. It is necessary to mention that when the contract vehicle was seized it was carrying a load of flour as part of its use for commercial gain. Upon seizure of the vehicle the complainant borrower was requested to clear his outstanding and take back possession of the vehicle along with the loan thereon. The litigant borrower instead of acting upon same only off loaded the flour as loaded to the vehicle instantly and never bothered to update the loan account. Not finding any positive response the OP No. 1 company sent pre auction notice dt. 25.07.2017 (copy annexed) to the complainant borrower further requesting him to clear the outstanding and take back repossession of the vehicle. The borrower as bent upon not to clear the EMI outstanding never bothered to Act upon the same thus compelling the OP No. 1 company to auction the loan vehicle on dt. 30.08.2017 having afforded sufficient opportunity to him to release his vehicle. Rather the borrower with an oblique intention has filed this complaint at the back of the OP No. 1 company. From the above content it is crystal clear that, the intention of the complainant is not to pay the dues rather to abuse the system. For better appreciation copy of the statement of account is annexed for reference.
Hence the OP No. 1 has prayed for the dismissal of the complaint.
OP No. 2 neither appeared nor filed any written version against the complaint hence has been set ex-parte .
Undisputedly the complainant has purchased a truck (LPT 2518) of Tata Motors Ltd. the said truck is second hand one which was purchased from one Satyabrata Dixit on 08.02.2017 for a consideration of Rs 8,00,000/-. The said truck was engaged for transportation of wheat and carrying wheat products. For maintenance of the truck complainant has availed a loan assistance of Rs 5,37,801/- from O.P No.1 and a hire purchase agreement between them is to repay the loan Fixing EMIs @ 21,255/- . No documents produced by the complainant in respect of payments of the EMIs. The complainant was very much aware of the monthly installment at the time of signing of the contract. At the time of execution of the agreement, the complainant was provided with detail accounts of the loan and the copy of the agreement. The complainant was to pay installments in due time. Due to default in payment of the installment dues the vehicle was repossessed in terms of the contract and subsequently the OP No. 1 company has auctioned the vehicle on dt. 30.08.2017 having afforded sufficient opportunity to complainant to release his vehicle. The complainant has not adduced any evidence in support of his allegation that the O.Ps have forcibly seized the vehicle.
This Forum has no territorial jurisdiction to entertain this dispute and that the agreement between the O.Ps and the complainant being a hire purchase agreement and that the hirer being not a consumer within the meaning of Sec.2(1)(d) of C.P.Act this complaint is not sustainable in this Forum. As The complainant having failed to discharge the contractual obligation to pay the installment dues in time, cannot allege deficiency in service against the O.Ps. The complainant is therefore not entitled to the reliefs sought for by him and as such the complaint is liable to be dismissed.
Further, it is pleaded by the complainant that the cause of action for filing of this complaint arose on 21.07.2017 when the goons of the O.P No,1 dispossessed the complainants driver from possession of truck . As discussed above, except the bald plea of the complainant there is absolutely no material on record to show that the OP No.1 has forcibly repossessed the vehicle from the complainant’s driver. The decision cited by the complainant of Hon’ble Appex court in criminal Appeal No. 267 of 2007 where it was held by the Appex court that the engagement of hooligans in the recovery process by way of forcible repossession of hypothecated asset is bad in law. But in the present case this decision is not found relevant to decide. The pre & post seizure intimation to Korei Police station Jajpur dtd. 21.07.2017 and the intimation dtd. 25.07.2017 addressed to petitioner and guarantor shows that due procedure has been maintained. The Financier is at liberty under the terms of the Agreement to take possession of the financed vehicle in case of default in payment of installments. There is, therefore, no legal impediment of such possession being taken. The hirer can avail the statutory remedy as may be available. The mere allegation that the Financier forcibly took possession of the financed vehicle without any material proof of the fact, cannot be a ground to contend that the hirer is prejudiced. (In this connection reference has been made to a decision of the Hon’ble Supreme Court reported in 2006 CTJ at page-209(S.C)(C.P) between the Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri Jagmander Singh & Anr.).
That apart, the agreement executed between the parties is undisputedly a hire purchase agreement. As has been held in a decision of National Commission reported in III(2006) CPJ 247(NC) between Ram Deshlahara-Petitioner Vs. Magma Leasing Ltd.-Respondent that ;
“under hire purchase transaction, financier does not render any service within the meaning of C.P.Act,1986 and the petitioner is thus not a consumer”.
In the present case since the transaction between the financier and the complainant is found to be hire purchase transaction, the financier-Cholamandalam Finance Co Ltd has not caused any deficiency in service to the complainant and thus the complainant is not a consumer within the meaning of Sec.2(1)(d) and 2(1)(o) of C.P.Act. For the reasons discussed above, we are of unanimous opinion that this Forum has no territorial jurisdiction to entertain the complainant and the complaint being not a consumer u/s.2(1)(d) of the C.P.Act is not entitled to the reliefs sought for by him. Accordingly, it is ordered:
O R D E R
The complaint be and the same is dismissed on contest against the O.P No.1 & ex-parte against O.P No.2 but in the circumstances without cost.
This order is pronounced in the open Forum on this the 28th day of July,2018 under my hand and seal of the Forum.
