ORDERS ON IA No.I

1. This application is filed by opposite party under section 11 CPC R/w section 2(d) and section 11 of C.P.Act for dismissal of complaint as the complainant is not a consumer as contemplated under the provision of section 2(d) of C.P.Act and there is no cause of action.
2. This application is supported by the affidavit of authorized signatory of opposite party Bank to the effect that the complainant has filed complaint for a direction to the opposite party to pay Rs.4,00,000/- and for such other reliefs.   The complainant had availed commercial equipment retail loan of Rs.17,41,000/- and executed agreement for loan and guarantee dated 14.08.2012 and he has agreed to repay the loan in 46 instalments at Rs.48,500/-.  The complainant has defaulted in payment of monthly instalment in spite of several requests and reminders.  As per the terms of agreement, all disputes arising under agreement shall be referred to Arbitrator in accordance with provision of Arbitration Act.  Arbitration proceedings are initiated in No.13/2016 for recovery of the entire loan amount and to sell the vehicle in question for realization of the loan amount.  In spite of notice from Arbitrator, complainant did not appear and the Arbitrator has passed the award.  Thereby, once the parties participated in the Arbitration proceedings, for the same reliefs complaint cannot be maintained.
3. The loan agreement discloses that the loan has been obtained for the commercial purpose.  Thereby, the complainant is not a consumer as per definition under section 2(d) of C.P.Act.  There is no cause of action.  As such, opposite party sought for dismissal of this complaint.
4. To this application, complainant has filed the following objections:- The application is not maintainable.  The complaint is filed for deficiency of service on the part of opposite party.  Complainant is the customer of opposite party, any deficiency arises between parties, this Forum has jurisdiction to entertain the complaint.  This application is filed only to harass this complainant and to drag the matter, as such the complainant has sought for dismissal of this I.A.
5. Complainant and advocate absent.  Only after hearing the advocate for opposite party, this IA is set down for orders.
6. The point for our consideration are as follows:-
   1. Whether the complaint is not maintainable as contended by the opposite party?
   2. To what order?
7. Our findings on the above points are:-
   1. In the affirmative.
   2. As per following
5299419885.  
8. Point No.1:- Of course, in the initial stage, the opposite party has taken a contention that as per the terms of the loan agreement, all disputes arising under this agreement shall be referred to Arbitration.  In this case also, Arbitration proceedings are initiated in No.13/2016.  Thereby, the present complaint is not maintainable.  But, such contention of opposite party cannot be accepted for the simple reason that this complaint is initiated much earlier to the initiation of Arbitration proceedings in 13/2016.  Only after this complaint, is filed such arbitration proceedings are initiated by opposite party to over come the present complaint.  Thereby, on this score, complaint cannot be rejected.
9. The other point raised by the opposite party is that the transaction in question is a commercial transaction.  Thereby, the complainant is not a consumer as defined under section 2(d) of C.P.Act.  As such, the complaint is not maintainable and liable to be dismissed.
10. Contrary to this, arguments submitted by advocate for opposite party, nothing is submtted for and on behalf of complainant to say that the complaint is maintainable except filing objections to the I.A.
11. To ascertain whether the complainant is a consumer or not, Forum has to get the assistance from explanation to the definition of consumer under section 2(d) of C.P.Act is that:

“Explanation: For the purpose 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.”

There is no pleadings of this type in 4 pages- complaint submitted by the complainant.Apart from that, copy of loan agreement is produced by the complainant himself discloses “commercial equipment retail loan” to over come this phrase, the complainant has not pleaded that he has purchased the product for earning his livelihood.Thereby, the complainant do not fall within the explanation of section 2(d) of C.P.Act since the document discloses that it is a commercial transaction.Thereby, the complaint is not maintainable.Hence, point No.1 for consideration is answered in the affirmative.

12. Point No.2:- In view of the findings recorded on point No.1, the transaction in question is a commercial transaction, thereby, the complainant is not a consumer, as such he cannot maintain the complaint.   Hence, the following

:: ORDER ::

1. Complaint is dismissed as not maintainable.
2. Give a copy of this order to both parties as per rules.

                                 (H.M.SHIVAKUMARA SWAMY) 

                                              PRESIDENT     

     (M.V.BHARATHI)                                      (DEVAKUMAR.M.C.)

           MEMBER                                                    MEMBER