Samaresh Kumar Mitra,  Member:

              The case of the complainant is that he is a businessman deals with different size of PVC pipes as a distributor and his family members are fully depend on the income of the said business. For sending goods to different places he purchased a TATA TP 709 after taking financial assistance from the OP. The said car purchased for his livelihood. Due to loss in his business the complainant unable to pay the EMI for the last few months and he requested the OP to give him some time to regularize the rate of interest and to hand over the papers and documents taken during the period of sanctioning loan but the op did not adhere the same. That on 15.3.2012 the op possessed the said vehicle by the muscleman on Durgapur expressway and prepared a repossession vehicle inventory. The complainant several times requested the OP to release the vehicle in his favour but the op demanded huge amount for the same. That on 10. 4.2012, OP sent a letter to this complainant stating that unless the petitioner paid a sum of Rs.128875/- they will sale the vehicle to any third party. The petitioner states that the OP forcibly possessed the vehicle without due process of law and they have no right to sale the vehicle to any third party. As the vehicle is lying before the OP for a long time, so this petitioner is deprived from the fruits of the said car and he is compelled to take hire vehicles from the market at Rs3000/- per day. The valuable property of the complainant became idle at the negligence of the OP for which the complainant is entitled to get damages to the tune of Rs.200000/- apart from the cost of the suits and other incidental charges. He prayed for a direction upon the OP to hand over the said vehicle and damages amounting to Rs.200000/- for mental pain and agony and other reliefs as this Forum deems fit and proper.

    The OP appeared by filing written version denied the allegations as leveled against him and he averred that the Manager SHRIRAM TRANSPORT FINANCE COMPANY LTD having its office at Pathar Kuthi P.O.& P.S.- Chandannagore, Dist.- Hooghly but it is not the issuing office. The cause of action has not occurred within the territorial jurisdiction of this Forum. The OP carries with financing business of giving financial assistance for commercial vehicle finance. Undisputedly the petitioner sought financial assistance for purchasing a vehicle for use of his commercial purpose and subsequently the subject proceeding arises out of and relating to a Loan Cum Hypothecation Agreement containing Arbitration Clause between Shriram Transport Finance Co. Ltd the OP and the petitioner and the Guarantor therein which were executed between the parties. As the petitioner purchased the said vehicle for commercial purpose so he is not a consumer within the meaning of section 2(1) (d) of the CP.Act,1986. The vehicle in question is the subject matter of the dispute was hypothecated and remained as collateral for the purpose of the said loan and the same remained with the OP as a security towards its loan. The petitioner had hypothecated the said vehicle with its additions, attachments and accessories by the way of first charge. The Loan-Cum- Hypothecation Agreement contains Arbitration Clause in column No.15 that …”All disputes, differences and/or claim arising out of these presents or as to constructions, meaning or effect hereof or as to  the right and liabilities of the parties hereunder shall be settled by Arbitration to be held in Kolkata in accordance with the provisions of Arbitration& Conciliation Act,1996 or any statutory amendments thereof or any statute enacted for replacement thereof and shall be referred to the sole arbitrator of a person to be nominated/ appointed by Shriram. The award of the Arbitrator is final and binding upon the parties concerned and any proceeding to be initiated in any court of law in pursuance of this arbitration shall be instituted and held in Kolkata only. The OP called upon the complainant to make payment of all the arrear of instalments and penal interest for delayed payment and also make over possession of the said vehicle to the company.

 The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

The OP filed evidence on affidavit which is nothing but replica of his written version.

Both sides filed written notes of argument which are taken into consideration for passing final order.

              Argument as advanced by the agent of the complainant heard in full.

              From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant Parinoy Sinha Roy ‘Consumer’ of the opposite party?

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

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards

        the Complainant?

  4. Whether the complainant proved his case against the opposite party, as alleged and whether

     the opposite party is liable for compensation to him?

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 Complainant Parinoy Sinha Roy is a ‘Consumer’ of the opposite party? ‘Consumer’ of the opposite party?

              From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP finance company took loan as  finance for purchasing a TATA TP 709 to engage the vehicle for carrying PVC pipes for his livelihood, so being a consumer he is entitled to get service from the OP .

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

      Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP to hand over the said vehicle and damages amounting to Rs.200000/- for mental pain and agony and other reliefs as this Forum deems fit and proper 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 Complainant?         

  The case of the complainant is that he being a businessman purchased a TATA TP 709 after taking financial assistance from the OP for his livelihood. Due to loss in his business the complainant unable to pay the EMI for the last few months and he requested the OP to give him some time to regularize the rate of interest and to hand over the papers and documents taken during the period of sanctioning loan but the OP did not adhere the same. That on 15.3.2012 the OP possessed the said vehicle by the muscleman on Durgapur expressway and prepared a repossession vehicle inventory then the complainants several times requested the OP to release the vehicle in his favour but the OP demanded huge amount for the same. That on 10.4.2012 the OP sent a letter to this complainant stating that unless the petitioner paid a sum of Rs.128875/- they will sale the vehicle to any third party. The petitioner states that the OP forcibly possessed the vehicle without due process of law and they have no right to sale the vehicle to any third party. As the vehicle is lying before the OP for a long time this petitioner is deprived from the fruits of the said car and he is compelled to take hire vehicles from the market at Rs.3000/- per day.

      The case of the OP is that the Manager SHRIRAM TRANSPORT FINANCE COMPANY LTD having its office at Pathar Kuthi P.O.& P.S.- Chandannagore, Dist.- Hooghly but it is not the issuing office. The cause of action has not occurred within the territorial jurisdiction of this Forum. The OP carries with the financing business of giving financial assistance for commercial vehicle finance. Undisputedly the petitioner sought financial assistance for purchasing a vehicle for use of his commercial purpose and subsequently the subject proceeding arises out of and relating to a Loan Cum Hypothecation Agreement containing Arbitration Clause between Shriram Transport Finance Co. Ltd the OP and the petitioner and the Guarantor therein which were executed between the parties. As the petitioner purchased the said vehicle for commercial purpose so he is not a consumer within the meaning of section 2(1) (d) of the CP.Act, 1986. The vehicle in question is the subject matter of the dispute was hypothecated and remained as collateral for the purpose of the said loan and the same remained with the OP as a security towards its loan. The petitioner had hypothecated the said vehicle with its additions, attachments and accessories by the way of first charge. The Loan-Cum- Hypothecation Agreement contains Arbitration Clause in column No.15 that …”All disputes, differences and/or claim arising out of these presents or as to constructions, meaning or effect hereof or as to  the right and liabilities of the parties hereunder shall be settled by Arbitration to be held in Kolkata in accordance with the provisions of Arbitration & Conciliation Act,1996 or any statutory amendments thereof or any statute enacted for replacement thereof and shall be referred to the sole arbitrator of a person to be nominated/ appointed by OP. The award of the Arbitrator is final and binding upon the parties concerned and any proceeding to be initiated in any court of law in pursuance of this arbitration shall be instituted and held in Kolkata only.

               It appears from the case record that this Forum in its order dated 25.4.2013 while disposing the maintainability petition hold that the complainant is a consumer of the OP and the case has been filed within the jurisdiction of this Forum. After perusing the documents and hearing the arguments we are in the Opinion that the complainant is a defaulter of premium and it is admitted in the complaint petition and he could not pay the amount demanded after the repossession but casting aside the demand prayed the recourse of this Forum. The complainant assailed that the OP repossessed the vehicle by muscleman but no complaint before the police has lodged by the complainant in relation to application of force during period of repossession. He referred the decision of Hon’ble Supreme Court in Citicorp Maruti Finance Ltd vs. S. Vijayalaxmi (S.C) ,2012(1) AICLR held that  Hire Purchase Agreement- Vehicle purchased under Hire purchase Agreement- Default in payment of installment- in case of mortgaged goods subject to Hire purchase Agreements, the recovery process referred to in  the agreements also contemplates such recovery to be effected in due process of law and not by use of force. But there is no instance of application of force on the part of the OP in the case in hand except only in the version of the complainant. The OP acted in relation to hypothecation agreement. So the complainant being a defaulter cannot go beyond the terms and condition in case of default of premiums. It is the maxim of the equity that ‘He who comes to Equity must come with clean hands.’ It is not clear from the face of the case record that what the price of the vehicle during the period of purchase and what amount has taken as finance from the OP and how much the complainant paid and what was the due amount at the time of repossession of vehicle. There is no instance whether the OP served any letter before repossession of the vehicle in question. The OP assailed the jurisdiction of this Forum if there is any clause regarding the Arbitration in the hypothecation agreement,.Supreme Court observed that even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment under the Consumer Protection Act, since the remedy provided under the Act is in addition of any other law for time being in force.

         Going by the foregoing discussion hence it is ordered that the complainant has failed to prove his case by adducing cogent document/evidence and therefore, the complainant fails on contest. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove his case beyond any doubt so he is not entitled to get any compensation as prayed for.

ORDER

       Hence, ordered that the complaint be and the same is dismissed on contest against the opposite parties, but without any cost.      

         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.

          Dictated and corrected by me.samaresh Kr. Mitra., Member.