Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Section 35 and 36 of the Consumer Protection Act against the opposite parties on the allegations that the complainant has purchased a car Toyota Etios bearing registration No. PB01-B-6619 and got it financed from opposite parties No. 1 and 2. The opposite party No. 3 appointed as custodian of said Car. The complainant became consumer of opposite parties. The complainant purchased a Car Toyota Etios bearing registration No. PB01-B-6619 and got financed from opposite parties No. 1 and 2. The amount financed was Rs. 6,07,544/- and EMI of Rs. 13,910/- fixed for 6 months for repayment starting from 1.2.2018. The complainant regularly paid the EMI till January, 2020 and installment for the month February, 2020 was pending and in the month March 2020, lockdown was imposed due to Covid-19 and installments for six months March to August 2020 were moratorium. The opposite parties No. 1 and 2 shifted the said six installments from 1.2.2023 to 1.7.2023 but raised the installments to Rs.20,446/- after calculating interest, which is quite unjust and against the directions of Government. Due to lockdown, there was huge downfall in business. The installments resumed from September 2020 and one installment of February 2020 was also pending. The complainant paid one installment on 30.10.2020 and paid another installment on 22.11.2020. Inspite of hard period, the complainant continuing the payment. But quite surprisingly, on 23.11.2020 at about 9.30 a.m. the complainant coming to Amritsar with his customers on said Car and the opposite party No. 3 alongwith other unknown persons came on Innova Car and stopped the complainant near Manawala, Amritsar and forcibly snatched the said Car, mobile and purse and took the complainant and said Car at Shriram Yard at Chheharta, Amritsar. The opposite party No. 3 returned back the mobile on reaching Shriram Yard, at Chehartta. The complainant made complaint at Police helpline at No. 112, then ASI Bhupinder Singh from Town chownki, Cheharta came and took the complainant to police Chowki and harassed the complainant at the instance of opposite parties. Then the complainant visited the office of opposite party No. 2 but they failed to give any satisfactory reply but gave the copy of interim order dated 2.11.2020 passed by Arbitrator regarding appointment of opposite party No. 3 as custodian of said Car. No intimation or notice sent to the opposite parties or arbitrator before passing such harsh order. Now on 25.11.2020, the complainant received notice from Arbitrator to appear before him at Kolkata. The reference of case to arbitrator is not fair as the complainant is making payment of installments. The complainant is running taxi business on said Car. The complainant used to work different firms such as OLA Cab, Uber etc. and also running taxi privately. Except the period of lockdown, the complainant was earning Rs. 4,000/- to Rs. 5,000/- daily by running taxi on said Car. The complainant is earning his livelihood by running taxi business on said Car. The complainant has prayed that the following reliefs:-
- The opposite parties may be directed to return the said Car to the complainant.
- The opposite parties may be directed to pay compensation at the rate of Rs. 4,000/- per day to the complainant from 23.11.2020 till actual return of said car to complainant.
- The opposite parties may be directed to waive the interest added in the six installments from February 2023 to July 2023
- The opposite parties may be directed to pay litigation expenses and counsel fee amounting to Rs. 10,000/-
- The opposite parties may be directed to pay compensation for mental harassment and suffering amounting to Rs. 10,000/-
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Photostat copy of account statement Ex. C-2, Photostat copy of Account statement Ex. C-3, Photostat copy of order dated 2.11.2020 Ex. C-4, Photostat copy of notice sent by Arbitrator Ex. C-5, Photostat copy of receipts Ex. C-6 to Ex. C-12, Photostat copy of Vehicle Inventory & Checking Sheet Ex. C-13.
2 Notice of this complaint issued to the opposite parties and opposite parties No. 1 to 3 appeared through counsel and filed written version 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 Parties No. 1 and 2 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 opposite parties state that 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 availed the financial assistance from the opposite parties no.1 and 2 for commercial purposes. Admittedly, he is using the vehicle in question for commercial purpose for generating profit by using the vehicle as taxi for different companies OLA, Uber etc. and generating a sum of Rs.4,000/- to 5,000/- per day. Hence, the present complaint is beyond the purview of the Consumer Protection Act, 2019. 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 District Courts to issue mandatory injunction order directing the opposite parties to return the vehicle. Owing to the default committed by the complainant in the repayment schedule as per the loan agreement, the matter was referred to the Arbitrator under the provisions of the Arbitration & Conciliation Act, 2006, and the Ld. Arbitrator after accepting the reference, has passed an order U/S 17 of the Act appointing the opposite party No.3 as receiver to repossess the vehicle in question. The complainant instead of challenging the said order as per the provisions of the Arbitration & Conciliation Act, 2006 has filed the present false and frivolous complaint. The said order being passed by a Statutory Authority has to be complied with in its letters and spirits unless the same has not been set aside by the appropriate court having jurisdiction under the Arbitration & Conciliation Act, 2006. The opposite party No.3 acted in compliance of the said order passed U/S 17 of Arbitration and Conciliation Act, 2006, is immune from any legal proceedings. Hence, the present complaint is liable to be dismissed with exemplary cost. 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.6,07,544/- from the opposite party vide Proposal No. PG/0213/C/16/000138 dated 08-01-2018. Said amount along with fixed Interest @ 7.48% p.a. and IRR @ 13.28% p.a. thereon was repayable in 60 monthly installments of Rs. 13,910/- starting from 01-01-2018. The last installment was agreed to be paid 1-1-2023. At the time of agreement, it was also agreed that present complainant shall be liable to pay Rs. 1,000/- plus Service Taxes for each cheque Bounce. Besides these, it was agreed that the present complainant shall be liable to pay delay payment interest on overdue amount @ 3% p.m. compounded monthly. It was also agreed that in case the present complainant wishes to pre close the loan account he will have to pay Prepayment Additional Interest @ 5% plus Applicable Taxes. Further Foreclosure Statement Charges @ 550/- plus taxes, Statement of Account Charges @ Rs.550/- plus taxes. All the Charges were duly agreed to be paid by the present complainant as per the schedule attached with the Loan Agreement. At the time of loan agreement, he signed the loan agreement, and schedule in token of then admission, acceptance and correctness. Owing to the situation arising out of the ongoing lockdown due to Novel Corona Virus- Covid 19, the Opposite parties, as a goodwill gesture, has granted moratorium of 6 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 6 months from the month of 1.1.2023 to 1.7.2023. Besides this, Opposite Parties have also not imposed any penal interest for the loan moratorium for a period of six 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 31.1.2021, a sum of Rs. 4,46,718/- is due as Foreclosure amount against the loan agreement in question which include charges as per settled terms and conditions as stated above Owing to the willful default committed by the complainant in the repayment schedule as per the loan agreement, the matter was referred to the Arbitrator under the provisions of the Arbitration & Conciliation Act. 2006, and the Ld. Arbitrator after accepting the reference, has passed an order U/S 17 of the Act appointing the opposite party No.3 as Receiver to repossess the vehicle in question. The Opposite party no.3 in compliance of the said order repossessed the said vehicle on 23.11.2020. Even after that, the opposite parties No. 1 and 2 have issued a notice dated 27.11.2020 to the complainant informing him the termination of the loan agreement and giving him a final opportunity to make payment in respect of the loan account but inspite of that, complainant did not make any payment 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 present complaint is not maintainable against the opposite parties as there is no deficiency on the part of Opposite Parties. 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 complainant has no prima facie case against the Opposite Parties. The Opposite Parties 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 answering Opposite Parties are vague and general in nature and that no specific averment, giving rise to file the present complaint, is made against the answering Opposite Parties. Hence, 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 parties. The complainant has no locus standi to initiate the present proceedings against the Opposite Parties. 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 Parties in the present false and frivolous litigation. The Opposite Parties state that from all above, it is apparent that the allegations leveled by complainant against the answering opposite parties 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 opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties No. 1 to 3 have placed on record affidavit of auth. Officer of OP Ex. OP1, Self attested copy of authority letter Ex. OP-2, Self attested copy of Loan agreement alongwith schedule Ex. OP-3, self attested copy of statement of account of complainant Ex. OP-4, Self attested copy of foreclosure letter Ex. OP-5, Self attested copy of pre Sale Notice dated 27.11.2020 Ex. OP-6, Self attested copy of Postal receipt dated 27.11.2020 Ex. OP-7
3 Notice of this complaint was served to the opposite party No. 4 but no one appeared on behalf of opposite party No. 4 and consequently, the opposite party No. 4 was proceeded against exparte.
4 We have heard the Ld. counsel for the complainant and opposite parties No. 1 to 3 and have carefully gone through the record and
5 Without touching the merits of the case, we have to see the point of maintainability in this case. 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 parties No. 1 to 3 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 parties No. 1 to 3. 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.
6 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
18.07.2023
