Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
Heard Advocate Mr.Sharma for the Complainant. Perused the material placed before us including Loan-cum-Hypothecation Agreement.
Alleged deficiency in service is in respect of taking possession of the borrowed vehicle and making sale thereof. At the first instance, it is stated that the vehicle was purchased after taking financial assistance from the Opposite Party for the transport business. There is no statement made in the complaint that the complaint falls within the exceptions of Section 2(1)(d)(ii) of the Consumer Protection Act and its explanation. Therefore, prima-facie he is not a consumer as per the meaning of Consumer Protection Act, 1986, hereinafter referred to as ‘the Act’. As far as coming to the alleged deficiency in service relevant clause of Loan-cum-Hypothecation the Agreement, namely Clause 6(c), which reads as under:
“Clause 6(c):
To take all necessary steps as fully and effectively as the Borrower could take to dispose off the said hypothecated assets at the risk and cost of the Borrower in all respects and it shall be lawful for CFIL forthwith or at any time thereafter and without notice to the Borrower to enter upon the premises, or garage where the Hypothecated assets shall be lying or kept and to take possession or recover and receive the same and if necessary to break upon any such place of storage and CFIL shall be entitled to appoint any officer or officers of CFIL or any other person authorized in this behalf as receiver of the said hypothecated assets or any part thereof with power to do all things as fully and effectively as the Borrower could do and/or to sell the said hypothecated assets by public auction or private contract or otherwise dispose off the said hypothecated assets including any material thereon at the risk and costs of the Borrower in all respects with power to rescind or vary any contract for sale without being bound or answerable for any loss or diminution in value and without being bound to exercise any of the powers hereby conferred or being liable for any loss occasioned by the exercise of any such power and to give effectual receipts and discharge for the purchase money and to do all such other acts and things for completing the sale as CFIL or the receiver, shall think proper. The Borrower shall not raise any objection to the regularity of any sale or other disposition made by CFIL nor shall CFIL be responsible for any loss that may arise from any act or default on the part of any broker or auctioneer or other person or body employed by CFIL or the receiver for the purpose of the sale or disposition. Provided that the Borrower expressly agrees that CFIL in reselling the assets shall only be obliged to offer the same to persons whose business is that of dealing in assets of the same type and description as that of the asset being resold and that in the event that such asset has no resale value, a certificate to that effect from such dealer will be binding on the Borrower.”
Deficiency in service as per the Act as per provisions of section as defined in Section 2(1)(g) reads as under:
“Section 2(1)(g):
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”
Therefore, looking to the averments made in the complaint, contractual clause of the Loan-cum-hypothecation Agreement, namely Clause.6(c), supra, no deficiency in service could be prima-facie, inferred. No notice prior to sale is required to be given considering the contractual terms. Under the circumstances, we find that this cannot be a consumer dispute. Thus, for the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Complaint stands dismissed in limine.
(ii) No order as to costs.
