This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that complainant no. 1 as a borrower and complainant no. 2 as a co-borrower/ guarantor, entered into an agreement with the opposite party and the opposite party has granted a loan for a sum of Rs. 13,00,000/- on 21.11.2014 for purchasing a truck which is to be payable by the complainant no. 1 in 47 equated monthly installments @ Rs.33,450/- per month and complainant no. 1 is going on paying the amount every month and some times more than the installment amount to adjust and make the status of the loan account regular and up-to-date so that the complainants may not be declared as defaulters by the opposite party and the opposite party have sent a notice to the complainant on 13.7.2017 stating and claiming a sum of Rs.5,96,067/- for foreclosure of the said loan account on different heads in the said impugned notice.

The complainants also state that from the notice dt. 13.7.2017 of the opposite party it appears that number of installments if stands at 47 and the installments amount to be payable by the complainant commenced on and from 21.11.2014 in such circumstances the 47^th number of installments is to be completed in the month of September, 2018 and the details of the installments payable and the monthly installments numbers are given in a chart herein below:

The complainants also state that from the notice of the opposite party that the 31^st installment fell due on 21.5.2017 which has already been paid by the complainant on 31.5.2017 to opposite party no. 2 and on 21.7.2017 the opposite party no. 2 also received a further sum of Rs. 61,000/- from the complainant no. 1 and Rs.5900/- is due for the 34^th installment to be payable on 21.8.2017 and on 21.8.2017 when the complainant no. 1 reached the Branch office of the opposite party no. 2 situated at Arambagh, Hooghly to pay a sum of Rs. 5900/- of the 34^th installment they refused to accept stating that the complainant should talk to the Law Cell of the opposite party no. 1 and on 21.7.2017 the opposite party no. 2 also received a further sum of Rs.61,000/-from the complainant no. 1 and Rs. 5900/- is due for the 34^th installment to be payable on 21.8.2017 and on 21.8.2017 when the complainant no. 1 reached the branch office of the opposite party no. 2 situated at Arambagh, Hooghly to pay the sum of Rs.5900/- of the 34^th installment they refused to accept stating that the complainant should talk to the Law Cell of the opposite party no. 1 and nothing is left due on or before 21.8.2017 save and except Rs.5900/- which was refused by the opposite party no. 2 to regularize the EMI due on 21.8.2017 as per the claim particulars described by the opposite party in its letter dt. 13.7.2017 and it would also appear that the vehicle run by the complainant no.1 under loan has been taken into possession by the henchmen of the opposite parties nos. 1 and 2 on 13.8.2017 by issuing the repossess vehicle inventory list to one Raja Mukherjee who was with the said vehicle at that relevant point of time and the copy of the inventory list with illegible initial signature by the agent of the opposite party dt.13.8.2017 was handed over to the driver of the said vehicle and the same has been kept in the custody of the opposite parties and the said vehicle bearing no.WB15C4684 with chasis no. MAT457104E7H13418 and engine no. 497TC92HVY828927of
Tata LPT 1109 was taken into possession illegally and forcibly in the district of Bankura on 13.8.2017 and the copy of inventory list supposed to be the carbon copy of the original which was delivered to the driver of the vehicle while the opposite parties were taking illegal possession of the vehicle is illegible and vehicle registration no. and chasis no. and engine no. were not written properly and the vehicle in question was kept under the custody of the opposite parties in the district of Bankura wherefrom the vehicle was seized.

The complainants also state that the opposite party nos. 1 and 2 have clarified that if any amount or installment is due to the complainant then how much amount was due and what sort of ignorance has been taken place while dealing with the opposite parties in payment of the EMI of Rs.33,450/- since 21.11.2014 till 21.8.2017 and if 34^th installment as per notice of the opposite party no. 1 and the Bank statement provided by them appears that the 34^th installment is due on 21.08.2017, the illegal and forcible possession of the vehicle taken by the henchmen of the opposite parties on 13.08.2017 is arbitrary, illegal and violation in terms of agreement which the opposite parties have entered into with the complainants while sanctioning the loan and if any amount is due of installment no.34 then the opposite parties should have served notice to the complainants for payment of the same but without serving such notice the opposite party no. 1 straightly served a notice dt. 13.07.2017 for foreclosure of loan amount claiming to pay a huge amount of Rs.5,95,067/- which is of no basis and if a sum of Rs.61,000/- is received on 21.7.2017 by the opposite parties then how it would claim a vexatious amount by its letter dt. 13.7.2017.

The complainants also state that the arbitrary and forcible possession of the said vehicle by the opposite parties incurred a huge loss amounting to Rs.9,00,000/- as it was not in use since 13.08.2017 and the purpose for which the vehicle is used for carrying package drinking water and other purpose by the complainant no.1 and the orders for carrying the same were already cancelled and there is a loss of reputation and is sustaining serious injury and harm to the economic and threats to the livelihood of the complainant no.1 and the complainant no.1 at most of the time stay in the vehicle while it is use as it is his only income to run the vehicle for carrying goods from one place to another place against rent and there is no provision for foreclosure as the opposite parties did not declare the account NPA by receiving the current installment which is due on 21.8.2017 and the opposite parties have taken possession of the vehicle of the complainant no.1 illegally on 13.08.2017 without prior intimation and the vehicle which is in possession of the opposite parties is not in a suitable condition as the complainant came to know from a reliable source that the opposite parties are damaging the vehicle and also selling out different parts there from further incurring huge loss to the vehicle of the complainant no.1 and it was not possible for the complainants to give reply to the notice dt. 13.7.2017 as they have received Rs.61,000/- on 21.8.2017 and owing to such disputes the complainants through their lawyer sent a legal notice on 23.8.2017 stating their grievances and for releasing the said vehicle which is illegally retained by them after receiving the rest of the EMI due to them on and from 21.08.2017 which was received by the opposite party no.2 on 24.08.2017 and in the said notice the vehicle registration number and the engine number were inadvertent and erroneously written due to illegible inventory list that was served upon the complainants and thereafter on 4.09.2017 the complainants again sent a similar notice by stating actual registration number, chasis no. and engine no. which was received by the opposite party on 5.09.2017 cancelling the entire notice dt. 23.08.2017 but they have not yet released the vehicle nor have given any reply to any of the notices.

The complainants also state that the opposite party no.2 used to receive the installment amounts at its place of business and the notice dt. 13.07.2017 was also sent to the complainants in their address and the vehicle which is in the custody of the opposite parties for which the loss incurred by the complainants are Rs. 9,00,000/- since 13.08.2017 and the cause of action of the case arose firstly on 13.07.2017 and lastly on 5.09.2017.

Complainants filed the complaint petition praying direction upon the opposite parties to release the vehicle bearing no. WB 15 C 4684 immediately in the similar condition at the time when it was seized after receiving the amount of EMI’s due on the date of release and to furnish the statement of accounts of the said loan of the complainant no.1 along with the written version and to pay sum of Rs.5,00,000/- if the vehicle is damaged or is not under condition when it was seized and to pay a sum of Rs. 9,00,000/- for loss of business and to pay a sum of Rs.2,00,000/- for mental pain and agony suffered by the complainants since 13.7.2017 and to pay a sum of Rs. 50,000/- towards litigation cost.

The opposite parties contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that the opposite party no.1 carries on and at all material times carries on business inter alia in letting out various Motor Vehicles and equipment on Loan cum Hypothecation and provide credit facility for the purpose of Motor vehicle under Loan cum Hypothecation basis and in or about September 2014 the complainant approached the opposite party no.1 and/ or held out to the complainant shown his desirous of purchasing one numbered Tata LPT 1109 Turbo Truck vehicle and approached the bank for financial assistance of Rs.11,70,000/- and the complainant was ready and willing to pay interest as required for availing the loan facility and the complainant obtained financial assistance from the respondent no. 1 and executed one loan agreement dt. October 24, 2014 which was entered into between Indusind Bank Ltd as the hirer and the complainant as the Borrower under the terms of the Loan agreement bearing no. WCV00135L dt. October 24, 2014 and in terms of the said Agreement parties of the loan agreement willfully agreed to resolve all disputes arising and/or touching by and/ or under the Agreement through Arbitration under Arbitration and Conciliation Act, 1996 and accordingly parties thereto agreed to refer their dispute to the sole Arbitrator and the parties thereto agreed that the venue of the Arbitration is to be at Chennai and the complainant purchased one Tata LPT 1109 Turbo Truck vehicle bearing Police Registration No. WB 15 C 4684, Engine No. 497TC92HVY828927 and Chasis no.MAT457104E7H13418 and the vehicle was hypothecated and/ or charged in favour of the petitioner as security towards repayment of the outstanding dues of the petitioner in terms of the said Agreement and the said Deed of Hypothecation Cum Loan agreement dt. October 24, 2014 and by way of first and paramount charge over the said vehicle.

These opposite parties submit that in terms of the said agreement the complainant was required to pay the principle sum of Rs.11,70,000/- along with interest @ 7.00% per annum in 47 equated monthly installments of Rs. 33,900/- for the first installments and Rs.33,450/- for the remaining installments each commencing on and from November 21, 2014 and the said vehicle is hypothecated and/ or charged in favour of the petitioner as security towards repayment of the outstanding dues of the opposite party no.1 in terms of the said agreement and by way of first and paramount charge over the said vehicle and thereafter the complainant failed to repay the installments in terms of the said agreement on the date fixed for repayment and the opposite party no. 1 has issued various notices on various dates through its Ld. lawyer demanding the dues and on March 03, 2017 terminating the agreement dt. October 24, 2014 and further directed the claimant to produce the vehicle before the opposite party in terms of the agreement dt. October 24, 2014 which the claimant intentionally denied and refused and the opposite party no.1 made several requests and/or reminder to the complainant to make payment but the complainant deliberately ignored such requests and/or reminders and the complainant did not make further payments and refused to pay the aforesaid sum or any part of portion thereof.

These opposite parties submit that by reason of the premises a sum of Rs. 5,12,250/- has became due and owing by the complainant as on date which is evident from the statement of account and having no option the opposite party no.1 approached the Ld. City Civil Court at Calcutta and filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 Misc. Case No. 2299 of 2017 which appeared before the Ld. III Bench on July 24, 2017 when the Ld. Judge was pleased to appoint Advocate as the Ld. Receiver to take possession the vehicle from the complainant and made the matter returnable on September 08, 2017 and such interim order was extended time to time and the Ld. Receiver has taken possession of the vehicle in terms of the order passed by the Ld. City Civil Court still lying under her custody as a court officer and the complainant had knowledge about the terms of the agreement and order passed by the Ld. City Civil Court and the complainant has deliberately suppressed the fact.

These opposite parties submit that the opposite parties have sent various notices and requests requesting the complainant to pay off the dues and further requested to produce the vehicle which was hypothecated in favour of the opposite parties which the complainant intentionally refused and in view of such refusal and default the agreement was terminated and the entire due was called upon to pay but the complainant refused to pay such due amount and the opposite party has every right to take possession of the vehicle in case of default in terms of the agreement after complying with the guidelines laid down by the Reserve Bank of India as the financier is the actual owner till the foreclosure of the loan.  

Both sides filed evidence on affidavit & written notes of argument which are taken into consideration while passing final order. Heard the argument advanced by the advocates of both sides.

ISSUES / POINTS   FOR   CONSIDERATION

1). Whether the Complainants Sri Tridib Kumar Jele & Sri Sankar Samanta are ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1). Whether the Complainants Sri Tridib Kumar Jele & Sri Sankar Samanta are ‘Consumers’ of the opposite party?

        From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein are the consumers of the opposite party, as the complainants being the purchaser of a truck took loan from the opposite party and entered into an agreement to purchase the impugned vehicle, so they are entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

     Both the complainant and opposite party are residents/having office address within the district of Hooghly. The complaint valued Rs.16,00,000/- for loss sustained by the complainants and as compensation for mental agony and other expenses  excluding the value of the vehicle ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

Complainant in his argument averred that complainant no. 1 as a borrower and complainant no. 2 as a co-borrower entered into an agreement with the opposite party for a loan of Rs. 13,00,000/- as on 21.11.2014 for purchasing a truck and the loan is to be payable by complainant no. 1 in 47 EMI @ 33,450/- each. Complainant no. 1 is paying the installments, in the meantime he received a notice dt. 13.7.2017 of opposite party claiming a sum of Rs. 5,96,067/- for foreclosure of the loan amount. It appears from the said notice that 31^st installment fell due on 21.5.2017 which has been already paid by the complainant on 31.5.2017 to the opposite party no. 2. He also stated that the opposite party no. 2 also received a sum of Rs. 61,000/- from the complainant no. 1 as on 21.7.2017. But, opposite party no. 2 refused to accept Rs. 5,900/- which is due amount of 34^th installment and advised the complainant to talk law cell of the opposite party no. 1. According to this complainant nothing is due on or before 21.8.2017 save and except Rs.5,900/-. Thereafter the said vehicle was possessed by the henchmen of the opposite party nos. 1 and 2 on 13.8.2017 and issued repossession letter with inventory list. According to this complainant the opposite party repossessed the vehicle illegally and forcibly and was kept under the custody of opposite party in the district of Bankura. At no point of time the opposite party No.1&2 have clarified that if any amount or installment is due to the complainant while dealing with the installments since 21.11.2014 till 21.08.2017. The way of repossession of the vehicle by the henchmen of the opposite party is arbitrary, illegal & violation of terms of the agreement entered by the parties during the sanction of loan. If any amount is due in respect of 34^th installment then the opposite party should serve notice to the complainants for payment of the same without serving notice for foreclosure of loan amount claiming a huge amount. Due to such repossession the complainant no.1 incurred a loss amounting to Rs.9,00,000/- as it was not in use since 13.08.2017 and carrying order has been cancelled and the complainant No.1 has lost his reputation & also suffered injury. There is no provision for foreclosure as the opposite parties did not declare the account NPA by receiving the current installment which is due on 21.08.2017. The repossessed vehicle has been damaged by the opposite party by selling different parts as a result the complainant no.1 faced loss. The complainants through their advocates sent legal notice on 23.08.2017 stating their grievances and for releasing the said vehicle which is illegally retained by them after receiving the rest of the EMI due to them on and from 21.08.2017.  They neither   released the vehicle nor gave any reply to the notices. The complainant further assailed that the opposite party violates the principles of natural justice. So, the complainant being the consumer of the opposite party remained unheard. The complainant filed another petition u/s-13(3B) of the Consumer Protection Act, 1986 praying for interim order directing the opposite party nos. 1 and 2 to release the seized vehicle. Ld. Forum pleased to allow the interim order with a direction upon the opposite party nos. 1 and 2 to release the impugned vehicle after getting a sum of Rs. 77,176/- from the complainant no. 1, but the opposite party no. 2 refused to accept the amount as per order of this Forum. Subsequently, the complainant filed an execution case before this Forum to execute the interim order and in the said execution opposite party filed a petition dt. 8.3.2018 stating on the basis of the ex- parte order passed by the Ld. City Civil Court at Calcutta that the opposite parties are unable to comply and return the vehicle as ordered by this Forum as the impugned vehicle is in the custody of Ld. Receiver appointed by the Ld. City Civil Court at Calcutta vide order dt. 24.7.2017 in misc case no. 2299/2017 filed by the opposite party before the City Civil Court at Calcutta. The complainant assailed that the arbitration proceeding should commence within 15 days but the same was initiated long after filing of the instant case and therefore, the order dt. 24.7.2017 was automatically vacated and the complainant also filed the copy of misc case no. 406/2018 from which the facts and circumstances of the case will appear. Lastly, the complainant averred that the opposite parties are simply harassing the complainants by illegally and forcibly taking the custody of the vehicle for which the complainant suffered a huge loss and is entitled to get the same from the opposite party.

Opposite party in his argument stated that opposite parry no. 1 carries on business in letting out various motor vehicles and equipment on loan cum hypothecation and provide credit facility for the purchase of motor vehicle under loan cum hypothecation basis. On September 2014 the complainant approached the opposite party no. 1 for financial assistance of Rs. 11,70,000/- for purchasing a truck and complainant agreed to pay interest as required for availing of the loan facility. The complainant obtained financial assistance from opposite party no. 1 and executed a loan agreement dt. 24.10.2014 entered between IndusInd bank Ltd. as the hirer and complainant as the borrower. In terms of the said agreement clause 23 thereto, parties of the loan agreement willfully agreed to resolve all disputes arising and/ or touching by and/or under the agreement through Arbitration and Conciliation Act, 1996 and accordingly parties thereto agreed to refer their dispute to the sole arbitrator and the venue of the arbitration is to bear at Chennai. In terms of the said agreement the complainant was required to pay the principal sum of Rs. 11,70,000/- along with interest @ 7% per annum in 47 equated monthly installments of Rs.33,900/- for the first installment and Rs.33,450/- for the remaining installment each commencing on and from November 21, 2014. The said vehicle is hypothecated and/ or charged in favour of the petitioner as security towards repayment of outstanding dues of the opposite party no. 1 in terms of said agreement. The complainant thereafter failed and neglected to repay the installments in terms of the said agreement and several cheque issued by the complainant have been dishonored. In view of the default committed by the complainant the agreement stood terminated ipso facto and the petitioner became entitled to recover the entire remaining balance which was payable by the complainant in terms of the agreement. The opposite party no. 1 issued various notices on various dates through its Ld. Lawyer demanding the dues and on March 3, 2017 terminating the agreement dt. 24.10.2014 and further directed the claimant/ complainant to produce the vehicle before the opposite party, but the complainant willfully denied and refused. The opposite party no.1 made several requests and/ or reminder to the complainant to make payment but the complainant/borrower deliberately ignored such request and/ or reminders of the opposite party no.1. By reason of the premises a sum of Rs.5,12,250/- has became due and owing by the complainant as on date, evident from the statement of account. Opposite party no. 1 thereafter having no other option approached the Ld. City Civil Court at Calcutta and filed an application u/s- 9 of Arbitration and Conciliation Act, 1986 being misc case no. 2299/2017 which appeared before Ld. III Bench on July 24, 2017 when the Ld. Judge was pleased to appoint Asha Kumari, Advocate as the Ld. Receiver to take possession of the vehicle from the complainant and made the matter returnable on September 8, 2017 and such interim order was extended time to time. Ld. Receiver has taken possession of the vehicle in terms of the order of Ld. City Civil Court and still lying under her custody as a court officer. The opposite party further states that the complainant never approached them for payment of the dues when they refused to accept. On the contrary the opposite party have sent various notices and requests to the complainant to pay of the dues and further requested to produce the vehicle which was hypothecated in favour of the opposite party. The complainant intentionally refused to pay due amount. The opposite party never tried to take possession of the said vehicle forcefully by its agent in violation of the rules framed by the Reserve Bank of India and natural justice and on the contrary the vehicle was repossessed by the Ld. Receiver appointed by the Ld. City Civil Court, at Calcutta without prejudice it is submitted that the opposite party has every right to take possession of the vehicle in case of default in terms of the agreement after complying with the guidelines laid down by the Reserve Bank of India as the financer is the actual owner till the foreclosure of the loan and such principle has been affirmed by Hon’ble Apex Court, Hon’ble High Courts of different states and Hon’ble National Commission. So, the complaint petition is liable to be dismissed with cost.

 After perusing the complaint petition, written version, evidence on affidavit, written version and the documents in the case record it appears that the complainant no.1 as borrower & complainant no.2 as co-borrower took loan amounting to Rs.11,70,000/- from the opposite party as on 24.10.2014 and paying the installments as per the loan agreement  since 21.11.2014 @ Rs.33,450/-and when the complainant no-1 defaulted to repay the installment no.31^st partly due as on 21.05.2017 & 32nd  installment due as on 21.6.2017 then the opposite party by its advocate sent legal notice dated 13.7.2017 stating  that the terms & conditions of the said agreement have not been performed by the borrowers, opposite parties have become entitled to terminate the said agreement and to recover possession of the said vehicle and accordingly opposite party herby terminate the said agreement with immediate effect and call upon the complainants to return the said vehicle to the opposite party forthwith alongwith a few points of termination in the letter dated 13.7.2017. The said letter also stated the due amount on termination amounting to Rs.5,96,067/-. Then the complainant paid a sum of Rs.61,000/- as on 21.07.2017, receipt filed. Later on the opposite party repossessed the said vehicle on 13.08.2017. The complainants sent advocate letters dated 23.8.2017 & 04.9.2017 to release the vehicle by receiving the amount of EMI if due and also requested to restrain from the selling or damaging the vehicle. But the opposite party pit no bid at the utterances of the complainant so the complainants filed the instant complainant before this Forum praying directions as incorporated in the prayer portion of the complaint petition. The complainants by suppressing the intimation letter of repossession of the opposite party & a civil case pending before the city civil court, Calcutta, filed the instant case alongwith an interim petition u/s-13(3B) dated 20.9.2017 and this Forum vide its order dated 21.9.2017 allowed the interim petition in absence of the opposite party. Subsequently the opposite party appeared before this Forum and stated that the vehicle was repossessed by the Ld. Receiver appointed by the Ld. City Civil Court, at Calcutta vide order dated 24.7.2017 in MISC case No 2299 of 2017. The instant case has been filed on 20.9.2017 during the pendency of a civil case at City Civil Court at Calcutta. The Ld. City Civil Court III bench also directed to submit paper by the date fixed showing that the Arbitration Proceeding is commenced in default the above order shall stand vacated. The letter dated 26.9.2017 of the opposite party clearly stated that they appointed one Shri D. Anand, advocate appointed as the sole arbitrator pursuant to the arbitration case and requested once again to settle the dues as per the agreement amicably. But from the case record it is transparent that the complainant without facing the arbitration proceeding preferred the recourse of this Forum. The complainant alleged that without any intimation of collection of due amount the opposite party forcibly repossessed the vehicle from the possession of the complainant and gave no opportunity to be heard. But the case record clearly speaks that the opposite party acted in accordance with the loan agreement and there is no instance of forceful repossession of the vehicle rather the opposite party approached the civil court for redresssal so the complaint petition is bereft of merit.      

            In the light of the above facts and observation it is crystal clear that the complainants  being consumer of the opposite party should avail of the recourse of appropriate Forum in accordance with the loan agreement for getting their grievances being redressed and not moved with clean hands and also not proved the deficiency of service against opposite party. Hence, there is some meaning on the averments made by the opposite parties in the written version and the same cannot be easily thrown out in the basket.

 4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants failed to establish his case and thus, opposite Parties are not liable to pay compensation & other reliefs as prayed for.

ORDER

       Hence, ordered that the complaint case being No.200/2017 be and the same is dismissed on contest against the opposite party, with no order as to cost.

       Interim order if any stands rejected.

 The Opposite Parties are exonerated from their liability.

       Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.