PER:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 and 38 against the opposite party on the allegations that the complainant has taken a loan for his Layland AL 3116 vehicle having registration No. PB11 CJ 7447 from the opposite party alongwith his father and hired the services of the opposite party for valuable consideration and the complainant is running the said vehicle without employing any permanent employee for exclusively earning his livelihood by means of self employment, the complainant is consumer as provided under the Act. The said complainant has taken the loan of Rs 10,45,789/- on 27.1.2018 from the opposite party and the interest charges to be paid and in total amount is payable in 46 monthly installments. The opposite party kept on charging the exorbitant amount of rate of interest over and above the RBI fixed rates and the opposite party charged excess rate of interest and other penal charges etc. than the actual existing rate of interest and charges payable as per the RBI fixed rates. The complainant has made the payment of installments to the opposite party and is ready and willing to make the payment of the remaining monthly installments but the opposite party is adamant on charging the exorbitant rate of interest against the existing RBI fixed rate of interest. The opposite party is not taking the monthly installments alongwith the RBI fixed rate of interest of the said vehicle but instead the opposite party is threatening to repossess the vehicle No PB11-CJ-7447. The opposite party in charging the excess amount than the RBI fixed rate of interest and threatening to repossess the vehicle without any reason is an act of deficiency in services, malpractice, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant for which opposite Party is liable to pay the compensation of Rs 1,00,000/- to the complainant. the complainant has prayed the following reliefs:-
- The opposite party be directed to charge the interest and other charges on monthly installments as per the RBI fixed rate of interest to the complainant and collect the monthly installments.
- The opposite party be directed to refund the excess amount charged alongwith interest @12% from date of payment till realisation.
- The opposite party be directed to pay the compensation of Rs. 1,00,000/- to the complainant.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Copy of sanctioned letter Ex. C-2, Copy of account statement Ex. C-3.
2 After formal admission of the complaint, notice was issued to Opposite Party. Opposite Party appeared through counsel and filed written version contesting the complaint by interalia pleadings that the present complaint is wholly misconceived, baseless and unsustainable in law and is liable to be dismissed as such. The complainant is not the consumer of the opposite party. The relationship between the Complainant and Opposite Party is that of Borrower and Debtor, and not those of consumer and Service provider Hence, the present complaint filed by the complainant is beyond the purview of the Consumer protection Act, 2019. This Commission has got no jurisdiction to try and entertain the present complaint. As per the loan agreement arrived at by the Complainant and the Opposite Party, in case any dispute/ difference/claim arises between the parties to the agreement, the same has to be referred to the Arbitrator. As per the terms of the loan agreement, even in case there is any dispute, the same has to be decided by the arbitrator and not by this Commission. Hence, instant complaint is liable to be dismissed. The complainant has also not approached this Commission with clean hands and is guilty of suppression, concealment and misrepresentations of the true and material facts from this Commission. The complainant has concealed the fact of having filed a civil suit bearing no. 413/2020 by mentioning his another address at Amritsar against the opposite party for the alleged cause of action which is still pending in the court of Sh. Simarjit Singh, CJJD, Amritsar for 18.2.2021. The complainant can't be allowed to agitate the same matter at two different places as the complainant himself has submitted himself to the jurisdiction of the Civil Court much prior to filing of the instant complaint. Mere allowing the instant complaint to continue amounts to abuse of process of law. Therefore also, present complaint is liable to be dismissed. The complainant has filed this tricky, evasive and misleading complaint before this Commission with an attempt to use this Commission as a tool to usurp the powers of the Civil Courts to issue injunction order restraining the opposite party from taking back the possession of the vehicle in question on default committed by the complainant. The complainant has defaulted in repayment of the installments. The complainant being defaulter of the Opposite Party, is not entitled to any relief from this Commission. The complainant has got financial assistance for a sum of Rs.10,45,789/- from the opposite party vide Loan Agreement No. 3626156 dated 17.1.2018 and the same was disbursed on 27.1.2018. Said amount along with fixed Interest @ 15.51% p.a. thereon was repayable in 46 monthly installments of Rs. 30,300/- starting from 10.3.2018. The last installment was agreed to be paid 10.12.2021 Tenure of the Loan Agreement was agreed to be 48 months. At the time of agreement, it was also agreed that present complainant shall be liable to pay Rs 750/- plus Taxes for each cheque Bounce, Cheque Swapping Charges, ACH, ECS, SI. Besides these, it was agreed that the present complainant shall be liable to pay Late Payment Interest @ 3% p.m. of unpaid EMI plus Taxes. Further it was also agreed that in case the present complainant wishes to pre close the loan account after six months of the loan agreement but between 7 to 36 months thereof, he will have to pay Prepayment Charges @ 4% of Principal Outstanding plus Applicable Taxes; and in case the present complainant wishes to pre close the loan account after 36 months of the loan agreement, he will have to pay Prepayment Charges @ 2% of Principal Outstanding plus Applicable Taxes. All the Charges were duly agreed to be paid by the present complainant as per the schedule attached with the Loan Agreement. It is important to mention here that at the time of loan agreement, he signed the loan agreement, and schedule in token of their admission, acceptance and correctness. However, owing to the situation arising out of the ongoing lockdown due to Novel Corona Virus- Covid 19, the Opposite party, as a goodwill gesture, has granted moratorium of 3 months to the complainant as per the guidelines of Reserve Bank of India even without the request of the complainant and deferred the last installments for 3 months from the month of 10.12.2021 to 10.4.2022. Besides this, Opposite Parties have also not imposed any penal interest for the loan moratorium for a period of three months as per the guidelines of the Reserve Bank of India. Even the account of the complainant has been irregular since from the very beginning and he has paid few installments with delay and deliberations, the detail of which is being shown in the Statement of Account. On 16.1.2021, a sum of Rs. 8,16,451.82 is due as Foreclosure Amount which include charges as per settled terms and conditions as stated above. The overdue amount as on 16-01-2021 is Rs. 3,83,991.97 Paise. Even after filing of the present complaint, the complainant has not deposited any amount in lieu of the installments in sheer disregard to the orders of this Commission to make the payment of the current installments to the opposite party. The complainant has filed the instant complaint against the opposite party in order to get undue benefit by abusing the process of law. It has been authoritatively settled that a defaulter is not entitled to any relief from the consumer Commission. There is a contractual relationship between the complainant and the opposite party, hence he is liable to make the payment to the opposite party as per the contract. The opposite party is charging rate of interest as per the terms and conditions of the loan agreement entered by the complainant with the opposite party. The complainant is not entitled to seek any deviation from the contract. The present complaint is not maintainable against the opposite party as there is no deficiency on the part of Opposite Party as alleged or at all. The complainant is using this Commission as a tool to avoid the legally enforceable debt and liability towards the Opposite Party which is not permitted under the law. The present complaint is liable to be dismissed on this very ground with exemplary cost. The present complainant has no prima facie case against the Opposite Party. The Opposite Party possess goodwill and has an established market and has assumed a good reputation in respect of its business. The allegations mentioned in the complaint against the Opposite Party are vague and general in nature and that no specific averment, giving rise to file the present complaint, is made against the Opposite Party. The present complaint is liable to be dismissed on this ground with exemplary cost. The complainant has miserably failed to show any damage on account of the replying opposite party's alleged actions and has also failed to establish any case for having suffered any loss due to the act of the Opposite Party. Irrespective of the fact that the Opposite Party can't be held liable for any action that is outside its ambit and control. The complainant has no locus standi to initiate the present proceedings against the Opposite Party. The complainant has chosen to file the present complaint as an attempt to take undue advantage of his own wrong. In one way he is enjoying the benefits of the loan advanced, and on the other way, he is not making the payment of the loan amount and interest thereon. Further, instead of complying with the terms and conditions of the loan agreement, he has arraigned the Opposite Party in the present false and frivolous litigation. The Opposite Party states that from all above, it is apparent that the allegations leveled by complainant against the opposite party are patently false and tricky, besides being vague, evasive, cryptic and lacking in material particulars, clearly by way of an afterthought and as such liable to be ignored/rejected outright and liable to be dismissed forthwith. The complainant has filed the present complaint against the opposite party with ulterior and oblique motives and designs, interalia , to harass and pressurize the opposite party to yield to the unlawful demands of the complainant. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record affidavit of Auth Officer of the opposite party as Ex. OP1, Self attested copy of authority letter Ex.OP2, Self attested copy of Loan agreement alongwith Schedule Ex.OP3, Self attested copy of settlement of account of complainant Ex. OP4, Self attested copy of Foreclosure Letter Ex. OP5, Self attested copy of plaint filed by the present complainant Ex. OP6.
3 We have heard the Ld. counsel for the parties and have carefully gone through the record placed on the file.
4 From the appreciation of the facts and circumstances of the case, the point involved in the present case is that the vehicle in question is financed with the opposite party from whom the complainant has got sanctioned a loan and a hire purchase agreement was executed between complainant as such the complainant is not a consumer of the opposite party . Reliance in this connection has been placed upon Tata Motors Finance Ltd. And Anr. Vs. Vikas Nanda & Ors. 2011(2) CPC 217 of the Hon’ble Haryana State Consumer Disputes Redressal Commission wherein it has been held that as vehicle was purchased under a hire purchase agreement, complainant was not a consumer . Further reliance has been placed upon Parmeswari W/o Ramakrishnana Vs. The General Manager, V.S.T. Service Station, The Branch Manager, Tata Finance Limited and the United India Insurance Company 2010(2) CPC 164 (NC) of the Hon’ble National Commission wherein it has been held that in the case of Hire purchase agreement, the complainant does not become a consumer and therefore, the complaint is not maintainable.
5 In view of the above discussion, we do not find any merit and substance in the complaint and the same is hereby dismissed with no order as to costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
30.08.2023
