The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Managing Director, PAL Movers Pvt. Ltd., Khannagar Chhak, Balasore, O.P No.2 is the Chief Managing Director, TATA Motors Limited, Mumbai, O.P No.3 is the Regional Manager, TATA Motors Limited, Bhubaneswar, O.P No.4 is the TATA Motors Finance Limited, Being represented by its Branch Manager, Balasore and O.P No.5 is the Chief Executive Officer, TATA Motors Finance Limited, Thane.     

                    2. The case of the Complainant in brief is that the Complainant has decided to purchase a TATA-207 (Pick-Up) motor vehicle for earning his livelihood and entered into a hire-purchase agreement with the O.P No.4 on 31.12.2004. The financed amount was Rs.3,39,000/- (Rupees Three lacs thirty nine thousand) only and the margin money deposited by the Complainant on 31.12.2004 was Rs.60,968/- (Rupees Sixty thousand nine hundred sixty eight) only. The Complainant also deposited total instalments of Rs.66,355/- (Rupees Sixty six thousand three hundred fifty five) only and has obtained valid receipt. The Complainant is a lawful owner of the said vehicle with a valid permit and insurance to ply the vehicle, but the said vehicle started giving troubles and problems since the date of purchase as the vehicle suffered from different manufacturing defects. So, the Complainant on several occasions approached the O.Ps, but they did not pay any heed to it. Thus, finding no other alternative, the Complainant was forced to deposit/ stock up the said vehicle on and from 18.09.2005 with the O.P No.1 for necessary repair and maintenance. But, the O.P No.1 with the help of the staff of O.P No.4 without doing the needful, forcefully detained and repossessed the said vehicle, even if all the monthly instalments has been duly paid by the Complainant along with other accessories, cash and documents etc. kept inside the said vehicle and did not release the same in spite of repeated requests of the Complainant. So, the Complainant filed a Criminal case against the O.P No.1 at Khantapada Police Station and in the meanwhile, the said case was compromised between the Complainant and O.P No.1 as the O.P No.1 (Harmohan Pal Singh) gave Rs.3,00,000/- (Rupees Three lacs) only to the Complainant. Thereafter, the O.P No.4 without giving any prior intimation to the Complainant, has taken away the said vehicle from the custody of the O.P No.1 and has already sold the same vehicle, for which the Complainant has sustained huge and irreparable loss. It is pertinent to mention here that without doing the needful and despite the negotiations for release of the said vehicle, the O.Ps have initiated an arbitration proceeding by claiming an illegal, arbitrary and imaginary amount from the Complainant. The said arbitration proceeding has already attended its finality on 12.05.2010 and the O.Ps have suppressed the material facts and also managed to snatch out an illegal final verdict from the sole arbitrator in favour of the O.Ps No.2 to 5 even if they have grossly violated the law. On receipt of the said final verdict from the sole arbitrator on 28.06.2010, the Complainant was able to know that the said vehicle has already been sold by auction by the O.Ps on 28.10.2009 and thereafter the Complainant became ill. Due to the above noted illegal and unauthorised activities of O.Ps on earlier occasions, the Complainant had initiated a Consumer Dispute case against all the O.Ps before this Hon’ble Forum and the said case was dismissed for default on 26.03.2014. As the Complainant was seriously ill and bed-ridden from 15.06.2010 to 20.03.2014, he could not able to pursue the above noted Consumer case and on 03.07.2014, he was able to know that his case has been dismissed for default on 26.03.2014. Even after the auction of the alleged vehicle, the Complainant on 05.07.2014 came to know that the said vehicle was still in his name and on 14.03.2016, the Complainant has received a notice from the Regional Transport Officer, Balasore to pay the tax in respect of the alleged vehicle. As the said vehicle has already been repossessed and auctioned by the O.Ps, it is the duty of the O.Ps to change the ownership, but they did not think to do the same, which amounts to deficiency of service on the part of the O.Ps and causing mental agony to the Complainant. Thus, the Complainant has filed this case in this Forum. Cause of action arose on 18.09.2005, 12.05.2010, 28.06.2010, 20.03.2014, 26.03.2014, 02.07.2014, 03.07.2014 and on 05.07.2014. The Complainant has prayed for change of ownership of the alleged vehicle along with compensation and litigation cost.

                    3. Written version filed by the O.P No.1 through his Advocate denying on the point of maintainability as well as its limitation and submitted that the case is barred by limitation as the date of occurrence was on 18.09.2005 and the present case was filed in the year 2014. Further, the Complainant was never ill and was having good health as he has filed series of cases in different Court during the period from 18.09.2005 to 2014. The Complainant had purchased a Pick Up van from O.P No.1 on loan basis and after few months of purchase, there was a payment dispute between O.P No.1 and the Complainant. So, the Complainant lodged an F.I.R against O.P No.1 on 21.01.2014. But thereafter, the Complainant was ready to settle the dispute with O.P No.1 and as per agreement, the Complainant received Rs.3,00,000/- (Rupees Three lacs) only as full and final settlement amount from O.P No.1. When the matter has already been settled and the Complainant has already received the settlement amount from the O.P No.1 in the same matter, which is the subject matter of this case, thus the case of the Complainant is liable to be dismissed.

                    4. Written version filed by the O.Ps No.2 and 3 through their Advocate denying on the point of maintainability, Consumer as well as its limitation and submitted that the Complainant has made misconceived and baseless allegations of manufacturing defect in the vehicle without relying any expert report from a recognized and notified laboratory U/s. 13(1) of the C.P Act and deficiency in service without any documentary evidence in support of the allegations made in the complaint. Moreover, at the time of filing of the complaint application, the vehicle was not in the custody of the Complainant and has been repossessed by the O.Ps No.4 and 5. It has been also claimed by the Complainant that the said vehicle has been sold by the O.Ps No.4 and 5. Thus, in absence of the vehicle in question, the Complainant’s grievance has no basis and should be dismissed. Further, the Complainant is not a Consumer as the vehicle in question i.e. Tata 207 (Pick-Up) is a commercial vehicle and has been used for commercial activities in order to generate profit. Moreover, the Complainant himself admitted in the complaint petition that the vehicle has been purchased by way of hire-purchase agreement, in which he claimed that the periodical installments had been undertaken to pay. As such, it is apparent that the said vehicle is under hypothecation and the Complainant is only the beneficiary not the owner till filing of the complaint. Hence, the Complainant is not the Consumer and he has no locus standi to file the case. Thus, the case of the Complainant is not maintainable before this Forum. Further, the Complainant had not made the financer a Party to this case. Whenever any vehicle reports to a workshop for scheduled services or for any repairs, the complaints/ grievances of the Customer are recorded in the job card, which do not imply admission of any defects in the vehicle, but a mere representation of the Customer’s grievances on the said vehicle. The vehicle as attended by the O.P’s dealers/ service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the vehicle. Hence, there cannot be any complaint of deficiency of service against these O.Ps by the Complainant. The vehicle in question was purchased by the Complainant on 31.12.2004 from the O.P No.1 and the Complainant has filed this case in the year 2014. Therefore, the case is barred by limitation as per C.P Act, 1986. The Complainant has not served any demand notice to these O.Ps before filing of the present case. It is pertinent to note that it is a mandatory requirement of the C.P Act, 1986 as well as rules that before filing of any complaint, a prior demand notice is necessary to be served upon by the Complainant. Hence, the case of the Complainant is liable to be dismissed. Neither the O.Ps No.2 and 3 nor their Advocates were present at the time of hearing of this case.    

                    5. Written version filed by the O.Ps No.4 and 5 through their Advocate denying on the point of maintainability, Consumer as well as its cause of action and submitted that the Complainant is not a Consumer as the relationship between the Complainant and the O.Ps is that of ‘borrower’ and ‘lender’. Further, the vehicle in question is a heavy commercial one. The Complainant is also a pension holder and had purchased the vehicle not for earning livelihood, but for a better living. Therefore, the Complainant cannot be treated to be a “Consumer” as defined in Section-2(d) (ii) of the C.P Act-1986. The present Complainant is guilty of suppression of facts and malicious misrepresentation. The fundamental maxim is that the plaintiffs in equity most come with perfect propriety of conduct, or with clean hands. As the Complainant has not come to this Forum with clean hands and has suppressed the material facts, he is not entitled to any relief. He has also filed this case maliciously to get rid of the loan liability and to escape from the legal proceeding going to be initiated against him. The O.Ps being the financer, are legally obliged to recover their legitimate dues from the Complainant and their legal/ statutory right cannot be interfered with particularly when there is no deficiency of service on their part. It is pertinent to mention that the complaint is not maintainable as the loan agreement contains the clause for Arbitration, where all the disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator. Accordingly, the Ld. Arbitrator has passed final order on 12.05.2010, which the Complainant received in the month of June, 2010. But, without challenging the award in proper Forum, the Complainant has come to this Forum for relief, which is not maintainable. Thus, the case of the Complainant is liable to be dismissed with cost.

                    6. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether the case is barred by law of limitation ?

(iii) Whether the Complainant is a Consumer under the O.Ps as per C.P Act, 1986 ?

(iv) To what relief the Complainant is entitled for ?

                    7. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that his vehicle has been repossessed by the O.Ps and it has been already sold by auction on 28.10.2009, but till yet ownership has not been changed, for which he has been facing a lot of difficulties. Thus, he has filed this case praying for direction to O.Ps for change of ownership of the alleged vehicle along with compensation and litigation cost. However, at the time of filing of this present case, arbitration award regarding to this case has already been passed vide Arbitration Proceedings No.TML/ LSA (V)/ LOT5/ LSA 1845 of 2010 on 12.05.2010. This fact was also been mentioned in the complaint petition. On the other hand, it has been argued on behalf of the O.Ps No.4 and 5 that arbitration award has already been passed regarding to this case, thus this case is not maintainable. In support of his argument, the Advocate for the O.Ps No.4 and 5 has relied upon the authority reported in Revision Petition No. 97 of 2012 in the case of Sangram Rout, acting as Manager and representing TATA MOTORS FINANCE LIMITED, Bhubaneswar (Vrs.) Niranjan Palai, where in it has been held by the Hon’ble State C.D.R Commission, Orissa that when the dispute having been decided and award was made by the sole arbitrator, the subsequent C.D case was not maintainable. Further, in support of it, reliance can be placed upon the authority reported in Revision Petition No. 2363 of 2002 in the case of Instalment Supply Ltd. (Vrs.) Kangra Ex-Serviceman Transport Co. and Anr., where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that after an arbitration award is already passed, the Consumer Fora cannot decide the Consumer case.

                    8. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above Authorities as discussed earlier, I am in the opinion that this Consumer case is not maintainable in this Forum, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, ordered:-

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.Ps No.1 to 5, but in the peculiar circumstances without cost.

                         Pronounced in the open Forum on this day i.e. the 31st day of May, 2019 given under my Signature & Seal of the Forum.