THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE No. CC- 51 of 2018

 

Mr. Samir Das,

S/O- Late Naresh Das,

Resident of Uttar Para,

Bikramnagar, Sekerkote,

P.S. Amtali, West Triprua,

Pin- 799001. …...................Complainant.

 

-VERSUS-

 

1. SREI Equipment Finance Ltd.,

CIN:U70101WB2006 PLC109898.

Head Office: Plot No.Y-10,

Block EP Sector- V, Salt Lake City,

Kolkata- 700091,

Represented by authorized signatory).

 

2. SREI Equipment Finance Ltd.,

North East Regional Office,

Dihang Arcade, Near ABC Bus Stop,

G.S. Road, Guwahati,

Pin-781005, Assam. ..................Opposite Parties.

 

 

     __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

For the Complainant : Sri Pradip Rathore,

  Sri Bimal Choudhury,

  Smt. Titu Rani Shil,

  Learned Advocates.

    

For the O.Ps : Sri Abhijit Bhattacharya,

  Sri Abhishek Bhattacharjee,

  Wali Ul Isalm,

  Sri Nabajit Biswas,

  Learned Advocates.

 

 

JUDGMENT  DELIVERED  ON  :  27.10.2021

J U D G M E N T

The Complainant's case in short is that the complainant for the purpose of livelihood availed loan for purchasing of a vehicle vide contract no-78733, vehicle no- 95895-JCB-3DX Back Hoe loader, bearing registration no-TR01-AA-1545 from the Opposite parties(in short O.Ps). As per repayment schedule total loan together with interest was to be repaid in 46 monthly installments. The complainant had paid 33 installments to the O.Ps. On 23.02.2018 at about 3.20. P.M. while the driver of the complainant was plying the aforesaid vehicle at Kalabri the agents of the O.Ps forcibly took repossession of the vehicle without any legal order and without consent of the complainant and issued an inventory list of repossessed asset dated 23.02.2018. It is stated by the complainant that on 22.02.2018 the O.Ps accepted a payment of Rs.56,101/- towards installment. It is also stated by the complainant that due to illegal seizure of the vehicle he is incurring a loss of Rs.16,000/- per day. That even after taking possession of the vehicle complainant paid Rs,1,12,202/- vide cheque no- 639538 dated 27.02.20218, equivalent to 2 installments in the name of the O.P. That the O.P. by letter No. Ref. no. SELF/ LAT-02/ North-East -region/ 78733/  2405/ 17-18, dated 12.01.2018 and letter No. Ref. No. SELF/ LAT/ -02/ North-East-region/ 78733/ 20489/ 17-18 dated 09.02.2018 illegally claimed Rs.3,14,465/- and Rs.24,905/-. The complainant met the representatives of the O.Ps  after which the O.Ps started accepting loan monthly installment from the complainant on 22.02.2018 and 28.02.2018. That prior to illegal seizure of the complainant's vehicle the O.P. on 22.02.2018 had taken loan installment of Rs.56,101/-. After seizure of the vehicle again the O.P. took 2 installments amounting to 1,12,202/- but did not release the illegally seized vehicle to the complainant. Complainant issued demand notice through his engaged advocate Mr. Pradip Rathore dated 11.05.2018 through speed post. After receiving the notice the O.Ps on 14.05.2018 replied that as the complainant is a defaulter as per contract agreement no-78733  and violated the terms and conditions of the loan agreement in time the hypothecated asset has been repossessed and carried on auction sale on 26th April, 2018. Hence, the complainant filed this complaint claiming compensation of Rs.19,56,461/-.

 

2. On the other hand O.P. appeared and filed written statement/ version denying all the allegations. In the written statement /version it is stated that the complaint petition is not maintainable in law and in fact. There is no cause of action and jurisdiction in the instant complaint. It is further stated that the complainant has violated the terms and conditions of the agreement and has not come to the court with clean hands. The excavator come loader was purchased by the complainant  taking the loan which is a heavy commercial goods vehicle and it was used for commercial purpose for earning profits from his existing business. It is also stated that the complainant owns from one commercial construction equipment, vehicle and engaged themselves in various business activities for that the complainant can not be treated as ''Consumer'' as per the definition provided under the consumer Protection Act, 1986. So, the complaint petition is liable to be dismissed as not maintainable. In the written version O.Ps further stated that clause no.9.8. provides ample rights to O.P. to seize the alleged commercial equipment and after disposal of the same at the best price available in the market, adjust the sell consideration against the outstanding of the said loan of the complainant. So these act of the O.P. can not be called as deficiency in service nor any illegal claim. It is further stated that alleged movable asset was valued at Rs.24,7,917/- which is not coming under the purview of the pecuniary jurisdiction of this commission as complaint was filed under the old Act. Thus O.Ps contested the proceeding. 

 

3. EVIDENCE ADDUCED BY THE PARTIES:-

The complainant submitted his examination in chief on affidavit as P.W.1 along with additional examination in chief on affidavit and also examination in chief of one Surajit Rudrapaul as P.W. 2.  17 documents (57 sheets) were also submitted on behalf of the complainant. The witness have been cross examined by the O.P. 

On the other hand O.Ps  also submitted examination in chief of one Of O.P.W.1 namely Alakesh Sarma and some unexhibited documents. O.P. also filed 5 documents in xerox copies comprising 38 sheets under firisti. The witness of the O.P. was also cross examined. 

 

4. POINTS TO BE DETERMINED: - 

(i) whether the complaint is maintainable in law?

(ii) Whether there is deficiency of service on the part of the O.Ps?

  (iii) Whether the complainant is entitled to get compensation/ relief as prayed for?

 

5. ARGUMENTS: - 

  On the date of argument the counsel of the O.P. was absent. Written argument was submitted from the side of the complainant.

Learned counsel submitted that the O.P. inspite of receipt of monthly loan installment illegally repossessed the financed vehicle of the complainant on 23.02.2018. It is further submitted that after taking into consideration the evidences, exhibited documents, this Commission may pass necessary order directing the O.Ps to release the seized vehicle or on the failure to pay compensation of Rs.19,42,163/- and also Rs.30,000/- as compensation towards harassment and deficiency in service. 

 

6. FINDINGS  AND  REASONS  FOR  DECISION:-

                   All the points are taken up together for convenience. We have carefully gone through the pleadings and evidences adduced by the parties. Now we will discuss oral evidences of both sides. Complainant in his examination in chief stated that he availed loan for the purchase of the JCB back Hoe Loader 3-DX from the O.P. he stated that at the relevant time his vehicle was engaged in the process of executing all various work orders of Biratia Infra project, Ltd. Julaibari site. His vehicle was illegally repossessed by the agent of the opposite parties without prior intimation and his consent. Due to the illegal seizure of the said vehicle he incurred loss of Rs.16,000/- per day w.e.f. 23.02.2018. 

 

7. P.W.2, Sri Surajit Rudra Paul in his examination in chief on affidavit stated that complainant Samir Das was his employer and he was employed by the complainant to drive the vehicle TR 01AA-1545(JCB-3DX-Back-Hoe Loader). On 23.02.2018 at about 3.20 P.M. when he was plying the aforesaid vehicle at Kalabari suddenly 4 people came to the work site of Biratia Infra projects Ltd. Julaibari site and asked him to get down from the vehicle and took possession of the vehicle. They have taken his signature on a paper at the time of repossession. 

On the other hand, D.W. 1, Sri Alakesh in his examination in chief on affidavit stated that the complainant Samir Das availed loan from the O.P. on 22nd January 2015 by executing an agreement with the O.P. There was a condition in the agreement under clause no-9-8 that in the event of any default committed by the borrower the O.P. may take possession of the asset. It is also stated that the vehicle(Back Hoe Loader) was engaged in the commercial purpose and the complainant was a defaulter. So O.P. issued repossession notice to the complainant on 09.08.2017 asking the complainant to pay a sum of Rs.1,85,300/- but the complainant avoided to pay the same causing wrongful loss to the O.Ps. It is further stated that the complainant did not respond to the notice dated 09.08.2017 and that is why the vehicle was taken on peaceful possession by the O.Ps by adhering to  all the norms and procedures including intimation to the local police station and also a proper intimation to the complainant. 

 

8. On appreciation of the above evidence we find that the vehicle in question was purchased for the commercial purpose and it was also engaged for earning profits from his existing business. The complainant stated that he was incurring a loss of Rs.16,000/- per day w.e.f. 23.02.2018. From the evidence of the P.W.2, we find that he was employed by the complainant to drive the vehicle. So, from the above evidence we can easily say that the seized vehicle was purchased by taking loan for the commercial purpose.  The definition clause of the ''Consumer'' [Section-2(d)] of Consumer protection Act, 1986 provides that ...…..........''It does not include a person who avails all such services for any commercial purpose.'' The explanation of the said definition clause also does not fall in the instant case.

 

9. We are in the considered view that the complainant is not a consumer as per definition provided in the Consumer Protection Act, 1986. So, the instant case is not maintainable in law. Accordingly complaint petition is dismissed. No costs. Supply the copy of this judgment to both the parties free of costs.

 

Announced.

 

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.