SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the Ops.
2. The case of the complainant, in short, is that he applied for sanction of a loan for purchase of a tractor. After sanction of the loan by the Ops-Bank, the complainant took delivery of the tractor along with its trolley from the local showroom at Remuna Golei and at that time the Ops-Bank took two post-dated cheques being signed from the complainant. Said tractor was registered in the local transport authority bearing Regd. No. OR-01H-0726. It was agreed upon between the parties that the complainant would repay the loan amount in 47 consecutive monthly instalments @ Rs.13,290.00. From the month of October, 2017 till December, 2017, OP No.3 had collected the instalments from the complainant without any receipts on the assurance that the same would be displayed in the statement of account. In the month of December, 2017, for financial stringencies, the complainant could not pay the instalment. On 20.6.2018, when the tractor of the complainant was engaged in a work, the henchmen of the Ops-Bank took away the tractor forcibly. Being helpless, the complainant approached the OP-Bank at Bhubaneswar where he was told that nothing can be done and the tractor cannot be returned back. Surprisingly, in the last part of June, 2018, the complainant received a letter from the Ops-Bank wherein the was asked to pay a sum of Rs.3,78,698.14 otherwise the tractor will be sold. It is further averred that the complainant had defaulted six instalments from January, 2018 amounting to Rs.79,740/-, but the Ops-Bank had demanded the aforesaid amount illegally. Thereafter, the complainant wrote a letter to the Ops-Bank to return the tractor on payment of the default amount, but in vain. On 21.8.2018, the complainant went to the office of OP No.2 for settlement of the matter and on query he came to know that the demand has been made on the terms and conditions of the agreement which he was not aware. Further, when the complainant demanded the statement of account, OP No.2 denied to supply and threatened to sell the tractor in case the demanded amount is paid. Hence, finding no other way out, the complainant filed the present case.
The cause of action for the case arose on 20.6.2018, when the Ops- Bank forcibly taken away the tractor from the possession of the complainant and on 21.8.2018 when the OP No.2 denied to return the tractor. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of letter dated 21.6.2018 issued by the Ops-Bank.
- Photocopy of registration certificate of the tractor.
3. On receipt of notice, the Ops made their appearance and filed their joint written version challenging the maintainability of the case and the complainant has no cause of action to file the case. They also denied the averments made in the complaint petition. They have stated, inter alia, that the vehicle in question is running regularly and the complainant is earning good from the vehicle. He intentionally defaulted to pay the instalments with a view to harass the Ops. The vehicle in question has got any defect from the date of purchase. The Ops are used to issue notices on the complainant to pay the arrear outstanding instalments prior to recovery of the vehicle, but he did not pay any heed to it. Thus, the Ops have legally recovered the vehicle from the complainant and issued notice to him requesting to pay the arrear outstanding instalments otherwise they will be forced to auction sell the vehicle. But the complainant remained silent, for which they auction the said vehicle to the valid owner and the vehicle is not available with them. Hence, it is prayed to dismiss the case with cost.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. In the above peculiar facts and circumstances of the pleadings of both the parties, before delve into the merits of the case, first of all, it is to be decided as to whether the case is maintainable or not.
6. On perusal of the pleadings of the parties so also the documents placed on behalf of the complainant, it is found that the complainant had taken the loan from Ops-Bank and purchased one tractor. As the complainant did not repay the loan installments, the Ops have taken the tractor from the possession of the complainant. On perusal of Annexure-1, it reveals that an amount of Rs.3,78,698.14 was outstanding against the complainant. It is also reveals that the Ops have requested the complainant to repay the aforesaid amount within seven days failing which they will sell the vehicle. Annexure-1, the letter containing the demand of the amount was issued by the Ops in favour of the complainant, is produced by the complainant which otherwise proved that the complainant had received the said demand letter. No other document is produced by the complainant to show that he had ever paid the arrear outstanding dues of the Ops-Bank. From the Annexure-1, is also proved that the complainant had taken loan from the Ops-Bank for purchase of tractor. Thus, the Ops-Bank is the financier.
7. In the above facts and circumstances of the case, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C) (Sunny & Others -vs.- Rajesh Tripathy) that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, Ops-Bank have the right to recover their dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financer. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the Ops, but in the facts and circumstances of the case, no order as to costs.
Pronounced in the open court of this Commission, this the 1st day of July, 2024 under signature & seal of the Commission.
