SRI BIJOY KUMAR DAS,PRESIDENT:-

                        Allegation of deficiency in service in respect of illegal threatening of repossession of complainant’s vehicle are the allegations arrayed against the Ops.

2.                     Complaint, in brief reveals that, Complainant being an unemployed person and for earning his livelihood and to maintain his family purchased a Drozer machine bearing Model No.CASE 770 SS LOADER BACKHOLE’ being financed by OP-Finance Company by executing an hypothecation agreement ondtd.26.03.2014. The engine no. of the said Drozer is 411.3203/1420091 and Chassis No. is T14A15486. It is revealed from the complaint petition that OP-Company financed an amount of Rs.18,32,000/- and complainant paid total  Rs.2,90,000/- on dtd.23.02.2014 and on dtd.08.03.2014 as his share and obtained due money receipts in this effect. As per the loan agreement the loan dues has to be repaid on 46 numbers of EMIs. The complaint petition also reveals that though the complainant was paying the loan dues regularly but due to loss of income complainant became defaulter and certain arrear amounts accrued in the loan account. It is further revealed that when the Drozer of the complainant was operated by the driver on dtd.02.02.2018 at Ortaghat,Kendrapara some henchmen of the Ops tried to took away the vehicle and on intervention of the complainant the vehicle was released, for which complainant loss an amount of Rs.10,000/-. Such acts of Ops according to complainant gives financial loss and compensation for mental agony to the tune of Rs.31,000/-. The cause of action of the instant case arose on dtd.02.02.2018, when the Ops tried to illegally repossess the vehicle and in the complaint it is prayed that a direction may be given to Ops not to repossess the vehicle and to pay a compensation of Rs.30,000/- alongwith cost of litigation.

3.                     On receipt of the Notice OP No.1 & 2 General Manager and Branch Manager SREI Equipments Finance Ltd. appeared through their Learned  Counsel and filed  written  statement  by way  of preliminary objection and parawise replies. In the preliminary objection of the written statement, Ops challenge the maintainability of the complainant on grounds of  jurisdiction, definition of consumer, clause of Arbitration and etc.. Ops also in their written statement averring the factual aspect and position of law on loan-cum-hypothecation agreement state that complainant availed a loan of Rs.22,90,000/- by executing an hypothecation agreement purchased a Case 770 Loader Backhole for commercial use and as per the agreement in case of default, the OP-Financer has every right to repossess the financed vehicle. In this case, when the complainant-loanee became a defaulter of loan dues amounting of rupees more than 15 lakh. Ops served pre-repossession notice on dtd.12.01.2018 and on dtd.09.02.2018 have tried their best to realize the dues on completing all legal formalities as per the terms and conditions of the agreement. OPs to substantiate their stand cites a number of decision of Hon’ble Apex Court, National Commission where the Courts has observed that, the OP-financer has every right to repossess the vehicle as the agreement. Accordingly, the Ops state that complainant has filed a vexatious complaint U/S-26 of the C.P.Act and the complaint is to be rejected with exemplary cost.

4.                  Heard the Learned Counsel for the complainant and case of the Ops on merit, perused the Notes on argument and documents filed by the complainant as per the list. Ops failed to file any documents though the documents were relied on by the Ops in their written statement. The admitted facts of the case are that complainant purchased a ‘Drozer’ Case 770 Loader Backhole by availing a finance from the company. It is also admitted fact that the cost of the financed vehicle is more than Rs.20 lakhs and the vehicle was driven by engaging a driver. It is further admitted that complainant is a defaulter in respect of payment of loan dues of the vehicle to the OP-finance Company.

Maintaianability of the Compalint:-  As the OP-Financer in their preliminary objection raised the question of maintainability of the complaint on following points:-

1. ‘Commercial use of vehicle’-    It is the plea of the OP-Company that complainant cannot be treated as a ‘consumer’ as defined U/S-2(d) of C.P.Act,1986 as complainant was not availed the finance for earning his livelihood also not engaged himself by driving the vehicle for maintenance of his family rather engaged a ‘driver’ to ply the vehicle for the purpose of business and to make profit. It is the further case of Ops that complainant prior to avail the finance of the case-vehicle has owned a Tractor with trolley bearing No.OD04 B8-804 and 895 and the intention of the complainant is to make profit out of the finance of the vehicle, accordingly, complainant cannot be treated as a consumer U/S-2(d) of C.P.Act,1986 and complainant comes within the exclusionary clause of Section-2(d)(ii) of the Act. On the other hand complainant admits that while the driver was plying the case vehicle on dtd.02.02.2018 the Ops tried to repossess the vehicle, in addition to this complainant does not refute the allegation of possession of a tractor bearing NO.OR-04-B8-894/895 as averred in the written statement of Ops. Further, availing a huge finance of Rs.20 lakhs cannot be expected for maintaining the family rather it is meant for earning profit out of the business. Hence, it is clear that complainant has failed miserably to prove that the case vehicle was used exclusively for the purpose of earning livelihood. This point this Forum is agreed with the version of the Ops, that the finance of the vehicle was not meant for earning livelihood. 
2. Jurisdiction:- Ops on other point challenge the maintainability of complaint U/S-11 of C.P.Act,1986. It is the plea of the Ops that complaint lacks the territorial jurisdiction as no office, branch or agents resides within the territorial jurisdiction of the Forum. This aspect is not countered by the complainant substantially. It is the plea of the complainant that the Ops procure the business from the locality, though the offices/branch offices situated outside the jurisdiction of this Forum.It is the further plea of the complainant that the cause of action or a part of cause of action arose on dtd.02.02.2018 within the local limits of this Forum, when the muscleman of Ops tried to repossess the case vehicle. In this regard, we are of the opinion that considering the cause of action no evidence is produced before the Forum, like lodging of any F.I.R/Complaint regarding the incident. So, the complaint is having no territorial jurisdiction of this Forum.

ii)      Pecuniary Jurisdiction:- It is challenged that the cost of the vehicle tune over Rs.20 lakhs, by which this Forum lacks the jurisdiction. We gone through attested copy of Retail Invoice filed by complainant which shows that, the cost of the vehicle is for Rs.22,90,000.00.The position of law is very clear in this regard, the pecuniary limitation of the Forum is within Rs.20 lakhs and in the case in hand, if we add the cost of the case vehicle alongwith compensation claimed which crosses the pecuniary limitation of this Forum. 

         Accordingly, on point of jurisdiction U/S-11 of C.P/.Act,1986 the complaint is not maintainable before this Forum.

3. Arbitration:- Ops in their written version raise the applicability of cause of Arbitration as per the hypothecation Agreement executed between the OP-financer and complainant-loanee. Considering the position of law, we are of the unanimous view that U/S-3 of C.P.Act,1986 provides, even in the existence of an Arbitration clause on the agreement there is no legal bar to file a complaint before the Foras, as C.P./Act,1986 is a special Act and same is in addition to and not in derogation to any other Law. The principle is of clause of Arbitration and its applicability in Foras are completely discussed by Hon’ble National Commission in case of N.K.Modi-Vrs-Fair Air Engineers P:vt. Ltd. reported in 1993(CTJ 11(NC). Hence, we are of the opinion that a consumer-complaint is maintainable before the Forum for adjudication of allegation of deficiency in service inspite of clause of Arbitration in the Agreement.                                                                                                                             

Facts of the dispute:-

                           The admitted fact of the dispute is that complainant-loanee is a defaulter in respect of his repayment of loan dues irrespective of the defaulted coment and reasons thereof. It is clear that when a loanee became defaulter in respect of repayment of loan dues any relief sought for in connection to default of loan dues cannot be treated as deficiency in service as defined in the C.P.Act,1986. Accordingly, the complaint has no merit in this regard.

                            Having observations reflected above, the complaint is dismissed both on facts and on point of maintainability without any cost on merit.                           

                           Pronounced in the open Court, this 27^st day of April-2019.

                                I, agree.

                                  Sd/-                                            Sd/-

                            MEMBER                                    PRESIDENT