Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal  No. 192 of 2016

Sriram Transport Finance Company Limited,

City Centre, Sixth Floor, Mall Road, Saharanpur

through its authorized representative.                  …Appellant.                                                                         

Rakesh Bhargava s/o Sri Chandrabhan Sharma,

R/o Madhonagar, Saharanpur.                         .…Respondent.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri Saurabh Singh, Advocate for appellant.

Sri R.K. Mishra, Advocate for the respondent.

Date   1.3.2023

JUDGMENT

Per Mr. Rajendra Singh, Member: This appeal has been preferred against judgment and order dated 9.12.2015 passed by the District Forum, Saharanpur in complaint case no.56 of 2011.

          The brief facts of the appeal are that, that the respondent had availed a commercial vehicle loan and was involved in commercial activity, hence, the complainant did not fall within the definition of Consumer. Moreover, it is categorically stated that the respondent has not taken the plea of earning livelihood in his complaint before the Ld. Forum below and has neither stated that the commercial vehicle was being plied by the respondent himself and not for commercial purposes by a driver. The Hon’ble Apex Court as well as Hon’ble National Commission has held in plethora of judgments that if the specific plea of livelihood has not been raised by the complainant, he does not fall within the ambit of the term Consumer. As such, the complainant is not a

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consumer and the complaint is not maintainable under the Consumer Protection Act and hence, liable to be dismissed.

          This court has no jurisdiction. The complaint was not maintainable before the ld. District Forum, Saharanpur because the complainant applied for loan at Dehradun, loan agreement was executed at Dehradun and also amount was disbursed from Dehradun. Thereafter, the complainant moved an amendment application for impleading the appellant’s company which opened a new office at Saharanpur which was allowed. As per the agreement only the courts at Dehradun had jurisdiction.

          The complainant applied for a commercial vehicle loan of Rs.2 lacs which was sanctioned. Thereafter, a commercial vehicle has been purchased by the complainant. The loan was to be paid in 40 EMIs. The total agreement value was Rs.2,99,750.00 but due to default of complainant and due to delayed payment of instalments, as per the terms and conditions of the agreement, on delayed payment, charges at contractual rate and interest was levied. The complainant failed to  repay the loan and several demand notices were sent to him. The complainant failed to maintained the financial discipline and an amount of Rs.1,00,802.00 had accrued (including delayed payment charges and other penal charges). The complainant did make any effort to clear the outstanding and overdue amount. Hence, the appellant company was forced to take custody the hypothecated vehicle forcefully. The complainant had himself stated in his letter addressed to the appellant company that if he failed to repay the loan amount, the appellant company may take custody of vehicle for recovery of its dues.

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          The appellant company issued another demand notice on 4.6.2010 but no efforts were made by the respondent to pay the amount of demand notice. Reasonable time has been afforded to the complainant and ultimately, the vehicle was disposed of through public auction held on 13.6.2010 for Rs.2 lacs. After adjusting the sale proceeds towards loan amount a sum of Rs.67,706.00 still remained unpaid. A demand notice has been sent for recovery of this amount.

          The complainant mischievously filed the complaint and concealed the fact of making delayed payment and that he was liable to pay penal charges for such delayed payments. The impugned order dated 9.12.2015 is without jurisdiction. The impugned order is illegal, arbitrary and erroneous in the eye of law and it has been passed by overlooking the written statement. The impugned judgment and order is against law and facts of the case, hence it is most humbly prayed that the judgment and order be set aside and the appeal be allowed.

          We have heard ld. Counsel for the parties and perused all the pleadings, evidence and documents present on record. 

          We have seen the final notice dated 15.5.2010 sent by the appellant to the complainant in which it has specifically been mentioned that a sum of Rs.1,00,808.00 is due by way of arrears as on 15.5.2010, so it is the admission of the appellant company that the due amount is Rs.1,00,802.00. The appellant’s counsel stated that this arrear did not include the loan amount. What does arrear means ?

          Arrear is the total outstanding demand due to anybody. After this notice the vehicle was seized on 1.6.2010 i.e. after about 7 months. On 1.6.2010 the vehicle was seized and as per averment of the appellant a notice on 4.6.2010 has been

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sent to the complainant wherein it has been said that the appellant provides you the last and final opportunity to deposit the aforesaid amount within 7 days of receipt of this notice and obtain the vehicle otherwise the company shall sell/auction the said vehicle to recover its dues.

          Now there is no record or document on the file to show that this notice has been received by the respondent in time. Auction was done on 13.6.2010 i.e. after six days and the sale amount is Rs.2 lacs. We are unable to understand that when the total due was more than Rs.2 lacs, why in final notice dated 15.5.2010, the arrear has been shown as Rs.1,00,802.00. The respondent has stated that he has paid Rs.70,000.00 and again on 30.3.2010 Rs.10,000.00 which has not been shown by the appellant.

          We have perused the impugned judgment and order. From the document on record, it is clear that no notice of sale has ever been received by the respondent. The vehicle has been seized and auctioned in haste. No opportunity was given to the respondent to take part in the auction. The cost of the vehicle was Rs.3,50,000.00 and the complainant paid himself Rs.1,58,000.00. The loan sanctioned was Rs.2 lacs out of which Rs.80,000.000 has been paid. The vehicle was put up on auction at Rs.2 lacs. So total amount received by the company is Rs.2.80 lacs.

          Thus, it is clear that when there is office at Saharanpur, Saharanpur court has jurisdiction to try the consumer case. No evidence has been given by the appellant that there was no agent or office in Saharanpur at the time of giving loan. The judgment delivered by the ld. District Forum needs no interference by this court because negligence has been very

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well established on the part of the appellant. It was their duty to inform the respondent regarding auction of the vehicle. Postal receipts or delivery documents should have been produced in evidence. Therefore, we are of opinion that there is no need to interfere in the judgment of the ld. District Forum. Therefore, the appeal deserves to be dismissed.      

ORDER

The appeal is dismissed.

  The stenographer is requested to upload this order on the Website of this Commission today itself. 

          Certified copy of this judgment be provided to the parties as per rules.       

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record.

       (Sushil Kumar)                              (Rajendra Singh)

            Member                                    Presiding Member

Jafri, PA I

Court 2