Punjab

Ludhiana

CC/14/854

Ravinder Kumar - Complainant(s)

Versus

M/s Cholamandalam Investment & Finance Company Ltd - Opp.Party(s)

Varinder Singh Adv.

23 Nov 2015

ORDER

Before the District Consumer Disputes Redressal Forum, Ludhiana.

                                                                                           C.C. No. 854/15.12.2014

                                                                                            Decided on : 23.11.2015

Ravinder Kumar son of Prakash Chand, Resident of 149, Ward No. 32, Bhai Himmat  Singh Nagar, Ludhiana.

                                                                                        ….       Complainant

                                         Versus

1. M/s. Cholamandalam Investment & Finance Company Limited, “Dare House” No. 2, N.S.C. Bose Road, Parrys, Chennai  600 001, through its Authorized Signatory.

 

2. M/s. Cholamandalam Investment & Finance Company Limited, Feroze Gandhi Market, Ludhiana through its Authorized Signatory.

 

 

                                                                                 …. Opposite Parties

 

Complaint u/S 12 of the Consumer Protection Act, 1986.

 

Quorum: Sh. G.K. Dhir, President,

                  Sh. S.P. Garg, Member.

 

Present: Sh. Varinder Singh, Advocate for complainant.

                Sh. Rishi Bansal, Advocate for opposite parties.

 

ORDER:

 

(Per G.K. Dhir, President)

 

1. Complainant, Ravinder Kumar filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as the “Act”) on averments that a loan of amount of Rs. 8,55,150/- was contracted by him from opposite parties on 25.9.2012.  At that time, Rs. 5,52,209/- was deducted as the 1^st installment, previous loan and breakage charges.  The remaining amount of Rs. 3,02,941/- was paid through cheque No. 288590.  Amount of monthly installment was found genuine, so complainant agreed to avail the loan for purchase of Truck bearing registration No. PB-23-H-7565. At the time of providing financial assistance, the opposite parties got executed several documents/blank signed cheques from complainant. A schedule of repayment of the advanced amount was prepared.  Loan was repayable in 33 monthly installments commencing from 1.11.2012 and ending on 1.7.2015. Complainant started paying the installments regularly and he had paid an amount of Rs. 4,59,662/-.  Meanwhile, complainant suffered financial crisis resulting in default in making payment of the balance installments.  Opposite Parties suddenly took possession of the said vehicle in December, 2013 in illegal and forcible manner on the pretext that in case complainant wants to retain the custody of the said vehicle, then he should pay interest @ 36% per annum.  Complainant did not oblige, but called upon the opposite parties that they have no right to claim such interest. Complainant suffered huge losses in the transportation business and as such, he failed to repay the entire loan amount. Complainant called upon the opposite parties to set a re-schedule of the payment of balance installments, but opposite parties did not agree.  Even, opposite parties  did not agree for return of the vehicle.  Rather, opposite parties obtained signatures of complainant on some blank cheques and blank signed stamp papers.  Those papers were misused against complainant.  Complainant claims to have suffered loss due to impounding of the truck illegally by opposite parties.  Deficiency in service on the part of the opposite parties pleaded for claiming compensation of Rs. 5,00,000/-  on account of mental tension, harassment and agony. Direction also sought against the opposite parties for return of Vehicle No. PB-23-H-7565.
2. In written reply filed by the opposite parties, it is pleaded that OP company is engaged in the business of extending financial facility to prospective customers under their various schemes and Sh. Jasbir Singh,  is serving as Sr. Associate Legal-Coordination in the Company and is competent to file the reply on the basis of power of attorney executed in his favour. An agreement was executed between the parties at the time of advancement of the loan. Terms of that contract binding on the parties and the same has no scope of interference by this Forum.  As the present matter relates to accounts and as such, this Forum alleged to be having no jurisdiction. Complainant being transporter got the financial assistance from the OP company and as such, the complainant is not a ‘consumer’. Complaint alleged to be false, frivolous and vexatious.  It is claimed that complainant has not approached this Forum with clean hands because he has suppressed the material facts. In fact, complainant approached OP company at its Chandigarh Branch and applied for the grant of financial assistance of Rs. 8,55,150/-  by agreeing to repay the same in 33 monthly installments of Rs. 32,833/- each. Complainant accepted the terms of the contract by signing the loan agreement and as such, after purchase of vehicle bearing registration No. PB-23-H-7565, he on account of execution of hypothecation agreement is not owner till repayment of the loan amount . In spite of  the assurance given by the complainant, he has not repaid the loan amount with accrued interest. It is claimed that complainant himself surrendered the vehicle in question to the opposite parties by submitting sworn affidavit dated 24.12.2013.  Through that affidavit, complainant claimed that in case he failed to pay the total outstanding amount within 15 days, then the OP company is free to sell the vehicle to anyone for recovering the losses. As complainant failed to pay the total outstanding amount within 15 days from 24.12.2013 and as such, the OP sold the vehicle and adjusted the sale proceeds in the account of complainant. Even after adjustment of the sale proceeds of the vehicle, an amount of Rs. 400847/- is standing due against complainant. It is claimed that this Forum has no territorial jurisdiction because the loan was got from Chandigarh Branch of OP No. 1.  In view of the existence of the arbitration clause, this Forum alleged to be having no jurisdiction. Other averments of the complaint denied by claiming that possession of the truck has not been obtained illegally and forcibly. Rather, the same was surrendered by complainant himself.
3. Complainant to prove his case, tendered in evidence his affidavit Ex.CA, along with documents Ex. C1 to Ex. C4 and then closed the evidence.
4. On the other hand, counsel for the opposite parties tendered in evidence affidavit Ex. RA of Jasbir Singh, Sr. Associate Legal-Coordination of opposite parties along with documents Ex.R1 to Ex.R5 and then closed the evidence.
5. Written arguments by both the parties have been submitted and even oral arguments heard.
6. First bone of contention remains as to whether complainant is a ‘consumer’ or not?  After going through para No. 1 of the complaint, it is made out that complainant availed earlier loan also from the opposite parties and that is why Rs. 5,52,209/- was deducted from the advanced loan of Rs. 8,55,150/- .  Further, after going through para No. 1 of the complaint, it is made out that complainant suffered huge losses in the transportation business and that is why he failed to repay the outstanding installments.  These assertions of the complaint lead to the inference as if complainant carrying on transport business.  Besides, after going through application Ex.R2 submitted by the complainant for contracting loan, it is made out that complainant disclosed the nature of business as ‘Transporter’ for the last 10 years.  So, complainant himself represented at the time of contracting loan as if he is a transporter by business for the last 10 years. The loan amount in question was contracted for purchase of a Truck bearing registration No. PB-23-H-7565, which stood hypothecated by execution of Loan Agreement Ex. R3 itself. A transporter by profession for the last 10 years as such contracted the loan for purchase of truck No. PB-23-H-7565. If so, the submissions advanced by counsel for the opposite parties has force that complainant is not a ‘consumer’  because he contracted the loan for commercial purposes.
7. As per law laid down in case Sri Jasobanta Narayan Ram versus The Branch Manager, L&T Finance Limited, 2014 (2) CLT 31 (NC), if complainant owning  two trucks contracts loan for purchase of more trucks, then he is not a ‘consumer’ because of contraction of the loan for commercial purposes. In case, the creditor repossessed the financed vehicle in default of payment of the loan amount as per terms of the loan-cum-hypothecation agreement, then deficiency in service on the part of the creditor cannot be inferred, is also the proposition of law laid down in the above said case. It is the case of the opposite parties that they got re-possession of the hypothecated  truck   in terms of the Agreement Ex. R3 and that case of opposite parties is credible and as such, deficiency in service on the part of the opposite parties cannot at all be legally inferred just due to re-possession of the truck by the opposite parties.
8. Even as per law laid down in case of Jagant Nagrik and another Vs. Cargo Motors Pvt. Ltd. and another, III (2015) CPJ 1 (NC), if the chassis of truck purchased by concerned complainant to expand existing transport business after availing loan, then the truck so purchased cannot be said to be for the purpose  of earning livelihood by way of self-employment .  In view of this, it was held that complainant is not a ‘consumer’.  Same is the position in case before us because here complainant carrying on transport business for the  last 10 years contracted the loan for purchase of a truck for expanding his business virtually and as such, complainant certainly is not a ‘consumer’ due to which this consumer complaint is not maintainable.
9. After going through affidavit Ex.R5 submitted by complainant on  24.12.2013, it is made out that complainant admitted that in case he failed to deposit the total outstanding due amount of loan within 15 days, then OP Company is free to sell the hypothecated vehicle to anyone for recovery of the losses. It is the admitted case of complainant that he failed to pay the installments as per schedule and as such, it is not a case in which the possession of the vehicle was got by the opposite parties by force. Rather, the vehicle was possessed by the opposite parties in compliance of the terms of affidavit Ex.R5 = Ex. C4 submitted by the complainant himself.
10.  After going through Clause 10(a) of Loan Agreement Ex. R3, it is made out that the borrower or the guarantor in case failed to perform obligations, repay the Loan or any installment, fee, charges, or costs or any other amount due to the opposite parties in the manner laid in the contract, then the same constitute the ‘Event of default’. As per Clause 11 of this Agreement (Ex.R3)  on the occurrence of ‘Event of default’  like one, referred above, rights of the borrower over the hypothecated Asset shall stand determined void due to which the Company will have right to get possession of the said Asset. So, possession of the truck in question is taken by the opposite parties as per terms of Clause 10 and 11. That is legally permissible as per law referred above and as such, there is no deficiency of service on the part of the opposite parties.  In view of this, submissions advanced by counsel for complainant has no force that the loan was contracted for earning livelihood. Rather, that contention not borne from the documentary evidence and pleadings of complainant himself, as discussed above.  Opposite Parties have one of its branch offices at Ludhiana and complainant also residing at Ludhiana and as such, this Forum has jurisdiction, particularly when the business is carried out by complainant at Ludhiana. Perusal of Ex. R4 = Ex. C-3 also establishes that Agreement pertains to the branch of Ludhiana VF.    
11.  As a sequel of the above discussion, complaint merits dismissal and the same is hereby dismissed without any order as to costs. File be indexed and consigned to the record.

Announced in open Forum.

 

                                ( S.P. Garg )                                         ( G.K. Dhir )

                                     Member                                            President