DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 52 of 2018

 

Smt. Rupa Bardhan @ Rupa Dhar(Bardhan),

W/O.-Shri Debabrata Bardhan,

Resident of Joynagar, A.K. Road, Bardhan Tilla,

P.S.-West Agartala, Pin-799045,

Dist.-West Tripura, .…..….....................................Complainant.

 

 

VERSUS

 

1). SREI Equipment Finance Limited,

CIN : U70101WB2006PLC109898,

HEAD OFFICE : PLOT NO.Y-10, 

BLOCK EP, SECTOR – V,

SALT LAKE CITY,

KOLKATA – 700091

(Represented by Authorized signature)

 

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 BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

For the Complainant : Sri Pradip Rathor,

  Sri Bimal Choudhuri,

  Smt. Titu Rani Shil,

  Advocates.

For the O.Ps. : Sri Nabajit Kr. Biswas,

  Advocate. 

 

JUDGMENT  DELIVERED  ON: 09/07/2019

J U D G M E N T

The complainant Smt. Rupa Bardhan @Rupa Dhar(Bardhan), set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service by the O.Ps. 

  The complainant's case in brief is that the Complainant for the sake of earning of her livelihood and self employment had approached the O.Ps. for sanction of loan in order to purchase a JCB BACK-HOELOADER 3DX. The O.Ps. accordingly sanctioned the loan having had entered into a contract with the Complainant vide contract No.54122 dated 31/10/2013. The Complainant thereafter purchased the JCB BACK-HOELOADER 3DX bearing Engine No.H00061431, Chassis No.HAR3DXSSJO1860834. The Complainant got the  JCB BACK-HOELOADER 3DX registered by the Appropriate Authority vide Registration No.TR-01Y1724. The Complainant has stated in her complaint she has not been furnished copy of the contract executed by her with the  O.Ps. As per the terms and conditions of the contract repayment of the loan together with interest was to be made by the Complainant by 47 monthly installments @ Rs.54,510/-. According to the Complainant she has already paid Rs. 24,85,890/- to the O.Ps. by way of 45 monthly installments which had been specifically stated by her in Para-10 of the Complaint. The complainant further stated in her complaint that on 13/03/2018 at 6.00 A.M while the Complainant's engaged operator (Assistant) Sri Samir Gore was cleaning the Complainant's   JCB BACK-HOELOADER 3DX and was preparing himself to start the day's work in the Sagar Bricks Industry, Jirania, the henchmen of the O.Ps. forcibly took repossession of the Complainant's said LOADER without any prior legal notice of the Competent Court / Authority and without consent of the Complainant. At the time of seizing of it no inventory list was prepared. After seizure, the LOADER had been kept at a Garage, near Ford Showroom on the Airport- Agartala Road. The complainant also stated that she had already paid Rs.24,85,890/- by way of repayment to the O.Ps. The LOADER was engaged in execution of work at the Sagar Bricks Industries, Kalabagan, Jirania and that through such engagement the Complainant was earning income @ Rs.4,000/- per day by way of hiring charge from the Sagar Bricks Industry and her driver was being paid Rs.500/- per day.

Alleging deficiency of service and for the illegal seizure(repossession) of the Complainant's JCB BACK-HOELOADER 3DX and also for loss of income from the LOADER and for causing harassment, the Complainant has filed the instant complaint against the O.Ps. claiming compensation in total Rs.19,50,000/-. 

Besides this, the complainant prayed for any interim order U/S 13(3-B) of the Consumer Protection Act, 1986 directing the O.P. parties not to disposed of the LOADER of the Complainant till disposal of the Complaint. 

Hence this case.

Both the O.Ps. on receipt of the notices from this Forum appeared and filed written statement jointly refuting the claims and allegations of the Complainant. The O.Ps. have challenged the maintainability of the Complaint alleging that the Complainant does not come under the definition of the “Consumer” as provided U/S 2(1)(d)(i) & (ii) the Consumer Protection Act, 1986. and that the relationship between the Complainant and the O.Ps. are that of Borrower and the Lender. So no consumer dispute arises between the Complainant and the O.Ps. Moreover, according to the O.Ps. as per the arbitration clause  9.11 in the agreement that had been executed between the Complainant and the O.P. Company, the alleged dispute is not maintainable. 

    The O.Ps. further alleged that the complaint is also not maintainable as the Complainant has filed the complaint after the Arbitration award dated 17/7/2017 has been passed by the Learned Arbitrator and that the O.P. Company has appointed the Learned Arbitrator lawfully as per Clause 9.11 of the agreement. 

  The O.Ps. also stated in their W.O. that the Complainant while giving proposal to the O.P. Company for purchasing the JCB BACK-HOELOADER 3DX  declared her identity as one of the partners in a partnership firm carrying business of Bricks Industry in the name and style of Sagar Bricks Industry situated at Kalabagan, West Tripura and also the proprietor of Bardhan Media. The O.Ps. alleged that the O.P. Company came forward to finance the complainant for purchasing the construction equipment JCB BACK-HOELOADER 3DX  for commercial purpose only and as such the alleged disputes which had arisen between the Complainant and the O.Ps. does not come under ambit of consumer disputes as provided by the Consumer Protection Act, 1986. Moreover, the complainant had utilized the JCB BACK-HOELOADER 3DX  for commercial purpose in the Bricks Industry, that aspect also debars her to come under the definition of “consumer” as provided U/S 2(1)(d)(i) & (ii) the Consumer Protection Act, 1986. Apart from this the Complainant herself did not operate the LOADER rather she has engaged an operator for the same which also excludes her from coming within the purview of the definition  “consumer”. To support this assertion the O.Ps. have referred to the decision of the Hon'ble Supreme Court in the case of Laxmi Engineering Work Vs. P.S.G. Industrial Institute (Civil appeal No.4193, decided on 04/04/1995). According to the O.Ps. on the above ground also the Complaint is not maintainable. 

    The O.Ps. further stated in their W.O. that the Complainant herself has violated the terms and conditions of the agreement and had not paid the EMIs of her loan before the due dates when it became due on every months which resulted in accruing additional due charges and that due to the irregular payments made by the Complainant through EMIs a sum of Rs.12,34,785/- along with interest remains outstanding  in the loan account of the Complainant. The O.P. Company had sent several demand notices calling upon her to pay the outstanding dues but the Complainant did not respond to the notices. According to the O.Ps. in compliance with the terms of conditions of the loan agreement the O.P. Finance Company had to refer the matter to the Learned Arbitrator on 28/09/2016 and that based on the interim application U/S 17 of the Arbitration and Conciliation Act,  filed by the O.P. Company before the Learned Arbitrator, the Learned Arbitrator on 28/10/2016 passed an order appointing the receiver for taking possession of the financed asset namely  JCB BACK-HOELOADER 3DX of the Complainant. Thereafter, Learned Arbitrator on 17/07/2017 passed the final award in favour of the O.P. Finance Company for taking possession and to dispose of the Asset towards adjustment of the due amount pending against the loan account of the Complainant. The O.Ps. asserted that their action of taking repossession of the JCB BACK-HOELOADER 3DX  is in strict adherence to the terms and conditions of the loan agreement and also having regard to the award passed by the Learned Arbitrator. The O.Ps. further alleged that before resorting to disposing the repossessed asset  the O.Ps. sent pre-sale letter on 23/03/2018 by registered post to the Complainant thereby recalling her to pay the amount sum of Rs.12,34,785/- along with interest as per the award within 7 days,  failing which the asset will be sold without further reference to the Complainant. Getting no response from the Complainant, the asset has been disposed of through auction sale dated 16/06/2018 in favour of one Sri Rama Bhattacharjee of Bhuban Ban, Lankamura, Agartala and that the sale proceed has been adjusted against the outstanding loan amount and the surplus if any to be refunded to the Complainant unless further dues are payable by the Complainant. 

      The O.Ps. also in their W.O. by referring to the definition “deficiency” provided U/S 2(g) of the Consumer Protection Act, 1986 asserted that the O.Ps. have not committed any fault, imperfection and inadequacy in the quality, nature and manner of performance in connection with the Loan-cum-Hypothecation Agreement vide contact No.54122 dated 31/10/2013 which had been executed between the Complainant and the O.P. Finance Company. According to the O.Ps. the Complainant herself was irregular in repayment of her loan amount and that she was not repaying the loan amount as per the terms and conditions of the agreement. So the O.Ps. can not be held guilty of committing any deficiency of service towards the Complainant.  

  The O.Ps. also denied the allegations of the Complainant that she has not been supplied by them the copy of the loan agreement . The O.Ps. in their W.O. have emphatically stated that the copy of the loan agreement has already been handed over to her at time of execution of the loan agreement.  

 

  In fine, the O.Ps. have denied guilty of any sort of deficiency of service towards the complainant. They have thus prayed for dismissal of the Complaint. 

 

 

3. EVIDENCE ADDUCED BY THE COMPLAINANT:

  The Complainant herself  has been examined as witness she has produced 10 documents comprising 50 sheets. The said documents  on identification have been marked  Exhibit-I series. 

  The O.Ps. however have not adduced oral evidence. They have however produced documentary evidence along with the written statement under annexures -A,B,C,D,E&F and thereafter produced two more documents under a Firisti dated 27/11/2018.  

 

4. POINTS TO BE DETERMINED:

Based on the contentions raised by both the parties in their pleadings and having regard to the evidence adduced by the complainant the following points cropped up for determination:

(I). Whether the Complaint filed by the Complainants is maintainable? (II) Whether there was any deficiency of service committed by the O.Ps. towards the Complainant. 

(iii). Whether the Complainant  is entitled to get compensation / relief ?

 5. DECISION AND REASONS FOR DECISION:

  We have heard arguments of both sides. We have perused the pleadings of the parties, documents and evidence adduced by the Complainant. We have also gone through the written arguments submitted by Learned Advocate for the O.Ps. 

    We consider it proper to discuss point No.(i) which relates to the maintainability of the complaint. 

 

 

 

  While arguing the case Learned Advocate appearing for the O.Ps. has contended that the instant complaint filed by the Complainant is not maintainable as the Complainant does not come under the purview of the Consumer Protection Act, as she is not a consumer as defined U/S 2(1)(d)(i) and (ii) of the said Act. Learned Advocate also argued that the relationship between the Complainant and the O.Ps. is that of borrower and lender and as such the dispute that had arisen between them can not be contemplated as that in between as consumer and a service provider. Learned Advocate further argued that the Loan-cum-Hypothetication agreement executed between the Complainant and the O.Ps. contains an Arbitration Clause vide Clause No.9.11 and that there was an arbitral award against the Complainant which has been passed prior to the filing of the Complaint before the Forum. Admittedly the Complainant did not challenge the arbitral award before the Court of competent judicature, but she has approached this Forum without stating the facts with clarity and there by misleaded the Hon'ble Forum . According to the Learned Advocate, the Complainant had not approached the Forum with clean hands and as such she is not entitled to any relief as prayed by her.  Learned Advocate for the O.Ps. also argued that there is no deficiency of service on the part of the O.Ps. as the O.Ps. have acted in furtherance of the terms and conditions incorporated in the loan agreement and that the O.Ps. had to go for Arbitration as the Complainant was found irregular and defaulter towards payment of the loan amount ignoring the terms and conditions of the loan agreement. Learned Advocate also argued that when the JCB BACK-HOELOADER 3DX   was taken in the possession of the O.Ps., the loader was engaged at the Sagar Bricks Industry of which the complainant was one of the partners. Learned Advocate further contended that the Complainant has stated in her evidence on Affidavit that the Sagar Bricks Industry used to pay her a sum of Rs.4,000/- per day as hiring charges and Rs.500/- towards the driver charge. According to the Learned Advocate from the evidence-in-chief of the Complainant it has been established that the Complainant has been earning a sum of Rs.4,000/- per day by way of hiring of the machine which amounts to a commercial activity  and not a domestic affairs. Learned Advocate submits that the manner in which the JCB BACK-HOELOADER 3DX was used by the Complainant, it clearly indicates that it was being used for commercial transaction and as such the Complainant does not come under the purview of the definition of “Consumer” as enshrined U/S 2(1)(d)(i) and (ii) of the Consumer Protection Act, 1986.

     The O.Ps. have thus prayed for dismissal of the complaint on ground that  the  complainant is not a consumer. Learned Advocate for the O.Ps. in support of his arguments has referred to two decisions, one rendered by the Hon'ble Supreme Court in the case of Laxmi Engineering Work Vs. P.S.G. Industrial Institute (Civil appeal No.4193, decided on 04/04/1995), another rendered by the Hon'ble National Consumer Disputes Redressal Commission in 1st Appeal No.22 of 1989 which was decided on  6th April, 1990. 

    Per contra Learned Advocate appearing for the Complainant argued that the complainant has already paid Rs.24,85,890/- to the O.Ps. by way of 45 monthly installments out of 47  installments. But inspite of this the O.Ps. without any prior legal notice and consent of the Complainant had re-possessed the JCB  BACK-HOELOADER 3DX of the complainant . Learned Advocate has contented that the LOADER was engaged with the execution of work at the Sagar Bricks Industry, Kalabagan, Jirania and that through such engagement the Complainant was earning income @ Rs.4,000/- per day by way of hiring charges from the Sagar Bricks Industry and her driver was being paid Rs.500/- per day. According to the Learned Advocate it was the only source of income of the Complainant and that the Complainant never utilized the LOADER for any commercial activities. Refuting the arguments advanced by the Learned Advocate for the O.Ps., Learned Advocate for the Complainant has contended that the Complainant was using the LOADER exclusively for the purpose of earning of her livelihood by means of self employment and as such she is a Consumer. He thus prayed for deciding the issue No.1 in favour of the Complainant and against the O.Ps.  

    Learned Advocate in support of his arguments has placed reliance upon the decision of the Hon'ble National Disputes Redressal Commission reported in CPJ- IV- (2012) at page 245.

      We have considered the submissions of both sides. 

      It is evident from the case record that the Complainant had purchased JCB  BACK-HOELOADER 3DX from the O.P. Finance Company by taking loan on executing a Loan-cum-Hypothetication agreement on 31/10/2013. The O.Ps. while submitting written objection has submitted some annexures namely annexures A,B,C,D,E&F. The annexure A relates to the Loan-cum -Hypothetication agreement which has been executed between the Complainant and the O.P. Finance Company and the annexure D relates to the Copy of the deed of partnership dated 21/04/2009 executed between Sri Bijoy Debbarma, 1st party and Smt. Rupa Bardhan(the Complainant), 2nd party and two others as third & fourth party. On perusal of the deed of partnership under annexure D it reveals that the Complainant is one of the partners of the Sagar Bricks Industry. 

              Admittedly, the Complainant had utilized her JCB  BACK-HOELOADER 3DX in the Sagar Bricks Industry  before it was repossessed by the O.P Finance Company. 

                We further noticed that from the side of the Complainant no rejoinder / objection has been filed regarding the copy of the deed of partnership under annexure D which had been filed along with the written objection of the O.Ps. The annexure D indicates that the Complainant is one of the partners of the Sagar Bricks Industry. So, it becomes crystal clear that the JCB  BACK-HOELOADER 3DX had been utilized by the Complainant for commercial purpose in the Sagar Bricks Industry at the relevant point of time. Hence, we have found force in the arguments advanced by the Learned Advocate of the O.Ps. on point (i) regarding non-maintainability of the complaint on ground that the Complainant does not come under the purview of the definition of “Consumer” as enshrined U/S 2(1)(d)(i) and (ii) of the Consumer Protection Act, 1986 and for that reason  the Complaint is liable to be dismiss. 

We find that the Complainant is not a consumer within the meaning of U/S 2(1)(d)(i) and (ii) of the Consumer Protection Act, 1986 as she had utilized JCB  BACK-HOELOADER 3DX in the Sagar Bricks Industry for commercial gain.  

The citation referred to by Learned Advocate for the Complainant in support of his arguments that the Complaint filed by the Complainant is maintainable does not appear to us applicable to the case in hand as the factual matrix of the referred case is distinguishable. 

6. Having regard to the nature and circumstances of the case and also keeping in full reliance upon the judgments of the Hon'ble Supreme Court and that of the Hon'ble National Disputes Redressal Commission cited above by Learned Advocate for the O.Ps., we are the opinion that the Complainant did not use JCB  BACK-HOELOADER 3DX by herself exclusively for the purpose of earning her livelihood by means of self employment and hence she was not a “consumer” within the meaning of U/S 2(1)(d)(i) and (ii) of the Consumer Protection Act, 1986.   Accordingly, the complainant is not entitled to any relief under the Act.  

We have thus decided the point No.(i) against the Complainant, but in favour of the O.Ps. 

In view of the decision rendered by us on the point No.(i) we do not find it necessary to discuss about other 02(two) points. 

    We accordingly dismiss the Complaint filed by the Complainant. 

There is no order as to costs. 

Before pertaining with the judgment we are giving liberty to the Complainant to seek redress for her grievances before the Appropriate judicature if so desired. 

 

 

  ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 SMT. DR. G. DEBNATH,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.