Haryana

Karnal

CC/63/2018

Darshan Singh - Complainant(s)

Versus

HDB Financial Service Ltd - Opp.Party(s)

R.K. Arora

11 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                            Complaint No.63 of 2018

                                                         Date of instt. 12.03.2018

                                                         Date of decision:  11.07.2019

 

Darshan Singh son of Shri Chuhar Singh resident of Lalupura, District Karnal.

                                                                         …….Complainant

                                                        Versus

 

HDB Financial Services Ltd. through its Divisional Manager, Divisional office, Sector-12, Karnal.

 

                                                                         …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act.          

 

Before   Sh. Jaswant Singh……President.  

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary……Member

 

 Present   Shri R.K.Arora Advocate for complainant.

                  Shri Dheeraj Sachdeva Advocate for opposite party.            

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant is the registered owner of vehicle bearing registration no.HR99-SK-Temp-0954 and earning his livelihood by plying the said vehicle, except that there is no other source of income of the complainant. The complainant got financed the said vehicle from OP for an amount of Rs.10,61,858/-commencing from 27.01.2015 to 26.01.2019 that loan amount was to be repaid by the complainant. After taking the loan complainant started repaying the loan amount regularly as per the repayment schedule and he has paid the regular installments and the remaining installment is still due towards the complainant. Sometime ago complainant was confined in District Jail Karnal in some case and due to this, the complainant became unable to earn his livelihood and could not deposit some installments to OP. In his absence the official of the OP through Gunda type of elements lift the said vehicle forcibly and illegally and the same still is in illegal and unauthorized possession of the OP. After releasing from the Jail, the complainant came to know in this regard and then he approached the OP and asked for return of his vehicle as the complainant has been paying the loan installments regularly, but OP refused to accede the genuine request of the complainant. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability; locus standi; cause of action; complainant does not fall within the definition of consumer  and complainant is estopped by his own act and conduct from filing the present complaint. On merits, it is pleaded that written loan agreement executed between the parties vide loan no.871775 and an amount of Rs.10,61,858/- was disbursed to the complainant on 27.01.2015 in the name of Darshan Chuhad Singh and as per the terms and condition mentioned in the agreement complainant and the OP are bound by the terms and conditions mentioned in the agreement. It is pertinent to mention here that as per the article 13 of the said agreement, in the event of default of payments by borrower, the company i.e. HDB Financial Services Ltd. by written notice to borrower, can declare the entire loan to be paid immediately as due amount whereupon, the same shall be payable together with accrued interest thereon as per schedule of interest and charges. The OP had intimated to complainant/borrower vide intimation letter regarding the default of payment and regarding the loan amount balance alongwith interest and other charges, but the complainant did not bother the same even to reply the same. It is further pleaded that there is no illegal possession of the vehicle in question has been taken by the OP.

3.             It is pertinent to mention there that as per article 14(v) of the said loan agreement, it is clearly mentioned that the OP company HDB shall be entitled to take possession of the assets secured by HDB in connection of the loan account and also will cause a presale notice to borrower to pay the entire amount due specified in notice and the same has been sent by HDB to complainant, but the complainant failed to pay the amount/dues and the company, as per the terms of loan agreement HDB had become entitled to sell the vehicle/asset as per the schedule of sale as envisaged under article 14 of the said agreement. It is further pleaded that a pre-sale notice and foreclosure letter has also been sent to the complainant on 23.02.2017, but the complainant did not respond to any request of the OP, under these circumstances seeing no response from the complainant, the OP has sold the vehicle of complainant for Rs.7,00,000/- to the highest bidder in accordance with the terms and conditions of the loan agreement. The complainant faced the present situation due to his own fault. Hence there is no deficiency in service on the part of the OP and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C4 and closed the evidence on 24.05.2019.

5.             On the other hand, OP tendered into evidence affidavit of Amit Kumar SPA Ex.RW1/A and documents Ex.R1 to Ex.R6 and closed the evidence on 9.7.2019.

6.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             The first question is arises as to whether complainant falls under the definition of ‘consumer’ or not as defined in the Act?

8.             Section 2(i)(d) of the Act defines ‘consumer’.

1. “Consumer” means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. {hires or avails of }  any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who(hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.”

9.          A bare perusal of the provision of Section 2(i)(d) reveals that for the purposes of this Act a “Consumer” means: (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promises, or partly paid and partly promises, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (ii) but does not include a person who buys such goods for resale or for any commercial purpose.

10.            The expression “commercial purpose” is not defined in the Act as such. In common parlance, the term ‘commercial’ indicates that when the goods are bought by a person not for his direct consumption but used for profit making, it may be said that goods are used for commercial purpose. However, the Explanation added later to Section 2(d)(i) by Ordinance/Amendment Act, 2003, excludes one category of profit making exercise from the purview of ‘commercial purpose’, namely, when the goods bought by a person are used ‘exclusively for the purpose of earning his livelihood by means of self-employment.

11.            The ambit of this exception is circumscribed by three conditions: one, the goods bought by a person are used for “earning his livelihood”, two, the usage of the goods bought is “by means of self-employment”, and three, such an activity must be undertaken ‘exclusively’ for earning livelihood by means of self-employment.

12.            Whether a person would fall within the definition of ‘consumer’ or not would be a question of fact in every case. ‘Livelihood’ means securing necessities of life and ‘self employed’ means a situation in which an individual works for himself or herself instead of working for an employer that pays a salary or a wage. A self employed individual earns his or her income through conducting profitable operations which they operate directly.

13.            The plea taken by counsel for the OP that complainant has purchased the vehicle in question for commercial purpose and he is not a consumer as defined under the consumer Protection Act, is not tenable. On perusal of the para no.4 of the complaint and affidavit tendered by the complainant it is specifically mentioned that the vehicle in question was purchased by him to earn his livelihood. Hence, the complaint of the complainant come under the definition of consumer.

14.            The complainant had got financed his vehicle from the OP for an amount of Rs.10,61,858/-. As per loan statement Ex.R5 complainant had repaid the loan amount Rs.17,87,298/- to the OP including sale amount of the vehicle to Gurdev Singh. It is admitted fact that the vehicle in question was taken in the possession by the OP on 19.01.2017. OP sent pre-sale notice Ex.R3 to the complainant on 23.02.2017 alongwith foreclosure amount Rs.758253.72. The complainant failed to deposit the said amount with OP. The vehicle in question was sold to one Gurdev Singh on 28.02.2017 for the total consideration of amount Rs.7,00,000/-. As per pre-sale notice, foreclosure amount Rs.58,283.82 is remain still pending. The vehicle in question has already sold by the OP to one Gurdev Singh and loan amount has been adjusted. Complainant did not repay the loan installment within time and violated the terms and conditions of the agreement. Thus, there is no force in the complaint.

15.            Thus, as a sequel to abovesaid discussion, we do not find any merits in the complaint and the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:11.07.2019

                                                                        President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

                     (Vineet Kaushik)       (Dr. Rekha Chaudhary)

                        Member                     Member