IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   12^th    Day of  October     2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

        Sri.Stanly Harold, B.A.LLB, Member

                                                            IA No.265/2021

                                                                       IN

                                                         CC.No.176/2017

M/s. Magma Fincorp Limited                       :         Petitioner/Opposite party

Having its Registered Office at Magma House

24 Parkstreet, Kolkata-700016.

Having its branch office at

1^st Floor Jains Tower, Vytila,

Eranakulam

Represented by its Deputy Manager(Legal)

& Power of attorney holder Ajithkumar.S.P.

[By Adv.N.Muhammed Nahas]

V/s

Sulfikar                                                       :         Respondent/ Complainant

S/o Muhammed Zakariya

889(15/889), Sheeba Manzil

Kollam.

[By Adv.Babu Sankar.R

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a petition filed by the opposite party in CC.176/17 U/s 13(1) of the Consumer Protection Act 1986 praying to hear the maintainability of the case.

          In support of the petition the Deputy Manager, Legal of the 1^st opposite party has filed an affidavit by swearing as follows:-

          The complainant is not a consumer as defined under the Consumer Protection Act 1986.  The transaction between the complainant and 1^st opposite party is purely commercial in nature and hence the complainant is not a consumer as defined under the Act.  The complainant purchased the vehicle for commercial purpose only.  The facts involved in this case are voluminous and complicated including  settlement of accounts.  The transaction between the complainant and the respondent is based upon an agreement in which there is a specific clause that in case any dispute arose between the parties they shall approach the arbitrator and Provision of Arbitration Act alone shall be applicable for redressing the grievance of the parties.  In the circumstances by virtue of Section 42 of the Arbitration Conciliation Act 1996 there is a bar in entertaining the case by this Commission.

          The complainant failed to repay the loan availed by the opposite party company within the specified time and hence overdue charges and other charges are still pending.   The petitioner herein is having every right to realize the entire outstanding amount from the complainant and its assets.  It is further alleged that the complainant failed to implead all necessary parties.  Hence the complaint is bad for non joinder of necessary parties.   The petitioner/1^st opposite party prays to dismiss the complaint as not maintainable. 

The IA has been filed on 13.10.2021 after serving copy to the counsel for the complainant.  Though sufficient opportunity of about 9 months has been granted.  The original complainant who is the respondent in the IA has not filed any objection. 

          In view of the reasons stated in the affidavit filed in support of the IA we are of the view that the complaint is not maintainable.  There is Arbitration clause in the agreement on the basis of which the entire transaction alleged in this case has taken place.  It is further alleged that the complainant by availing loan has purchased a commercial vehicle LMV Earth Moving Equipment.  It is to be pointed out that the complainant  has not pleaded anywhere in the complaint that he has availed the loan from the opposite party and purchased the earth moving equipment for self employment or inorder to earn his livelihood.  In the circumstances we find force in the unchallenged claim of the petitioner in the IA that the transaction between the complainant and the opposite party is a commercial transaction and would not come within the definition of  consumer as defined under the Consumer Protection Act 1986.

          It is further to be pointed out that the pleadings and relief sought for in the original complaint would indicate that the complaint is for settlement of accounts and to order to return the amount unlawfully obtained by the opposite parties from the complainant and to return the security documents of the loan transaction and also to issue direction to the RTO to cancel the endorsement regarding hire purchase agreement from the RC Book of the vehicle.  According to the 1^st opposite party who filed the IA the original complainant failed to repay the loan availed from the petitioner company within the specified time.  Hence overdue charges and other charges are still pending and the petitioner finance company is having every right to realize the entire outstanding amount from the complainant and its assets.  The above averments in the affidavit paragraph 4 remains unchallenged. Therefore it is clear that the complainant is a  defaulter of the amount due to the petitioner finance company who is the opposite party in the complaint.  As the complainant is a defaulter the opposite party is legally entitled to recover the amount as per the agreement and if the opposite party has taken any steps to recover the amount legally due to them as per the agreement it cannot be  termed as deficiency in service or any unfair trade practice.  In view of the reasons stated  above we hold that the complaint is not maintainable before the Consumer Disputes Redressal Forum/Commission.  We find merit in the IA and the same is only to be allowed.

          In the result IA stands allowed by holding that the complaint in CC.176/17 is not maintainable.

          No costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 12^th  day of  October   2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent