On the allegation of deficiency in service and mental agony caused by the opposite parties and illegal selling the vehicle bearing registration No. KA-34/TY 1121.  The complainant has sought for compensation of Rs.10,00,000=00 PLUS Rs.25,000=00 towards cost of litigation.

            2.  The complainant purchased a Mahindra Bulero vehicle from the dealer at Bellary Motors Ltd., Bellary on 28-08-2012 with temporary Certificate of Registration No. KA-34/TY-1121 with finance from the Mahindra & Mahindra Finance Service Ltd., having branch at Koppal, which financed Rs.5,40,000=00 to the complainant to purchase the vehicle.  The price of which is Rs.6,86,691=00 as per the Tax Invoice Ex.A.5.

            3.  In paragraph – 5 of the written version, it is stated that, the complainant has agreed to pay lona amount of Rs.5,40,000=00 with interest in 48 equated monthly installments of Rs.16,040=00 each and executed the loan agreement on 28-08-2012.

            4.  The complainant failed to pay the installments as agreed upon.  Therefore, notice as per Ex.A.2 was issued on 01-07-2013 and another as per Ex.A.3 dated 18-07-2013.  Second notice contents reads as follows;

“Still as a fair and last chance from our end your are hereby called upon to clear the entire amount of Rs.690973/- due under the said Agreement, on or before 05.08.2013 from the date of receipt of this notice towards full and final discharge in respect of the above vehicle under the Loan Agreement.  Should you fail to do so, we shall be constrained to sell of the said vehicle and appropriate the sale proceeds towards the receivable amount under the said Loan Agreement.  In case of any shortfall after such appropriation.  We reserve our right to recover the same from you as per law.”

            5.  According to the complainant, the OP No.1 forcibly took the possession of the vehicle from the possession of the complainant using their agents and got seized the vehicle on 28-07-2013 and not issued seizure report to him.

            6.  Paragraph – 10 to 13 of the complaint reads as follows;

“The complainant very next day i.e. on 29.07.2013 went to 1^st OP office and requested to return the Mahindra Bolero vehicle.  The 1^st OP informed the complainant to pay the outstanding installments within a month and thereafter they will revise the loan account and will release the vehicle.  Since, the complainant was unable to arrange the outstanding loan amount, he brought one prospective purchaser along with an amount of Rs.1,00,000/- and visited the 1^st OP office on 05.09.2013 and requested 1^st OP to take Rs.1,00,000/- and transfer the loan in the name of the prospective purchaser and further requested to release the vehicle and informed that the remaining amount will be paid in due course by the prospective purchaser.  However, the 1^st OP informed the complainant that they have to seek permission of their head office and asked the complainant to come after three months.

The complainant once again approached the 1^st OP on 10.12.2013 along with the prospective purchaser and Rs.1,00,000/- cash and requested to release the seized vehicle.  However, the 1^st OP informed the complainant that the file relating to the complainant vehicle is pending in the office of 2^nd and 3^rd OP and hence asked the complainant to approach them in March / April 2014, by that time why will receive necessary approval / permission from the offices of 2^nd and 3^rd OP.

The complainant approached the 1^st OP on 14.03.2014 along with the said prospective purchaser and Rs.1,00,000/- cash and requested OP to release the vehicle.  At that time, the 1^st OP informed that the vehicle was already sold.  The action of the 1^st OP in taking the vehicle forcibly from the complainant and selling the same without informing the complainant amounts to deficiency in service.  The 1^st OP has not informed the complainant regarding the auction sale.  The prospective purchaser brought by the complainant was ready to purchase the vehicle, however, the 1^st OP without informing to the complainant has sold the vehicle to the third party in order to cause monetary loss to the complainant.  The 1^st OP has acted against the settled principles of Hon’ble High Court and Hon’ble Supreme Court, while seizing and selling the vehicle.

Due to the forcible seizure of the vehicle the complainant suffered huge monetary loss and mental agony.  The OP’s have made the complainant to run from the pillar to post to get the information about his vehicle.  Further they are demanding to pay Rs.1,50,000/- to settle the account of the complainant.  The OP’s are harassed the complainant without giving the correct information about the statement of account and seizure of vehicle and even after illegally selling the vehicle the OP’s continued to harass the complainant and demanding Rs.1,50,000/-.  Hence the complainant being left with no alternative has approached this Hon’ble Forum seeking relief.”

7.  The first contention in the written version is that this Forum has no territorial jurisdiction citing the decision of the Supreme Court in Sonie Surgical V/s National Insurance Company Ltd., - 2010 CTJ 2 (SC) (CP).  This decision is not applicable to the facts of the case as the loan amount has taken from Koppal branch and the vehicle has been seized and sold at Koppal branch of Mahindra Mahindra Finance Ltd.,

8.  In the written version, there is a reference to Clause No.26 of the Agreement.  No document is furnished to show that arbitration proceeding is pending in respect of the dispute in question in the present proceedings.  Therefore no need to make reference of the same.

9.  The company has furnished Form No. 29 & 30 executed by the complainant and also Ex.A.10 issued by the R.T.O. Sirasi, which discloses that the vehicle has been sold to one Srinivas Seetaram Hebbar of Sirsi town on 02-08-2014, who is presently owner of the vehicle.  The vehicle was registered as KA – 15/M-6569.

10.  There is nothing on record to show that the possession of the vehicle was taken at all by using force by the complainant possession.  The complainant has not given evidence.  Place and time of repossession not stated.  What kind of force is used is not available.  There is no FIR filed against wrongful repossession of the vehicle.  Hence we do not accept the allegation of repossession of the vehicle through force.

11.  This case was posted for judgment on 28-02-2015.  On 27-02-2015 counsel for OP has furnished some documents.  On perusal of these documents, we notice that this is not a case of Hire Purchase Agreement under which the OP is the financier.  On the other hand, this is a simple case of finance on Loan by Financier to a Prospective Purchaser of a vehicle under a Loan Agreement.

12.  Nowhere in the complaint, the complainant stated that the vehicle has been hypothecated to the company under Hire Purchase Agreement.  The OP has not claimed that the complainant has executed Hire Purchase Agreement in the written version filed in the case.

13.  The complainant was the owner of the vehicle.  There is no Hire Purchase Agreement.  There is no entry in the Certificate of Registration, which discloses expenses of Hire Purchase Agreement as provided u/sec. 51 of the Motor Vehicles Act.  The transaction was Loan simplicitor.  The relationship on account of transaction is that of creditor and debtor and nothing more.  The company had given the loan on certain conditions as per Loan Agreement now produced on 27-02-2015, dated 28-08-2012 containing details terms of loan including recovery of loan.  The OP company has not undertaken any service of the borrower.  Lending money is not a service but only is a business of finance company.  In other words, the complainant has not availed any service but only borrowed certain sum from the OP company, which he has to repay in terms of agreement.  Further, no dispute has arisen regarding manner of recovery.  The same has to be agitated before the appropriate Civil Court.  This is not a consumer dispute as the complainant is not a ‘consumer’ as defined u/sec. 2(1)(d) of the Consumer Protection Act – 1986, because deficiency in service referred to in the complaint is not created in relation to any service to be rendered by the creditor to the borrower.

            14.  For the reasons given above, the complaint stands dismissed.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.