West Bengal

Paschim Midnapore

CC/3/2017

Sk. Hasibul Rahaman - Complainant(s)

Versus

Tata Capital Financial Services Ltd. - Opp.Party(s)

18 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                                                                                 

                                                                                  Bibekananda Pramanik, President,

Pulak Kumar Singha, Member

and

Sagarika Sarkar, Member

   

Complaint Case No.03/2017

 

Sk. Hasibul Rahaman, S/o-Sk. Abdul Mujid, Vill-Mohanpur  

P.O.-Mundamani, P.S.-Pingla,

Dist-Paschim Medinipur.….………Complainant

Versus

1. Tata Capital Financial Service Ltd. Authorized Sales Office, CTFSL, Kharagpur Branch, at Satkuria, P.O.-Matakatpur,  P.S.-Kharagpur (L), Dist-Paschim Medinipur
2. Tata Capital Financial Service Ltd. Salt Lake, Sector-V.P.S.-Sarijontech, Park, 11^th Floor , Kolkata-700091 ……………….Ops.

 

For the Complainant:  Mr. Ashim Kumar Dutta, Advocate.

For the O.P.             :  Mr. Dipankar Pati, Advocate.                     

                                                                    Decided on: -18/08/2017                             

                               

ORDER

                         Sagarika Sarkar, Member – This instant case is filed u/s-12 of the C.P. Act, 1986 by the complainant Sk. Hasibul Rahaman, S/o-Sk. Abdul Mujid, alleging deficiency in service on the part of the above mentioned O.Ps.

                             Case of the complainant, in brief, is that being an unemployed person the complainant applied for loan of Rs.19,00,000/- to the O.P.- Tata Capital Financial Service Ltd. to purchase a JCP Cat Machine on 30/01/2015 for self employment and accordingly a loan agreement bearing no.70000272460 dated 27/01/2015 was  executed by and between parties as per terms and conditions of which

Contd………..P/2

                                         

                                                                                     

                                                                           ( 2 )

 the complainant would repay the said loan  by 46 Equated Monthly Installment (EMI) @ Rs.53,360/- each and the 1^st and 46^th installment would be payable on  03/04/2015 and  on 03/01/2019 respectively. It is stated by  the complainant that he has paid Rs.12,47,525/- in that said way but rest of the E.M.Is.  remained unpaid due to complainant’s financial crisis. It  is further stated by the complainant that all  on a sudden the O.P. repossessed the said machine  by their musclemen at  Belda on 23/11/2015 and kept the said machine within their custody at Kharagpur. It  is stated from the petition of  complaint that the complainant requested the  O.P. on several occasion to return back the machine in question but the O.P. refused to do the same and stated the complainant that the O.P. will sell the JCP Machine within very short time. It is specifically stated by the complainant that the said repossession of the machine make the complainant to incure financial loss as the machine in question was his only source of income and the behavior of the O.P. compelled the complainant to file this instant case. Accordingly the complainant has prayed for direction upon the O.P. to hand over the JCP Machine and to pay Rs.1,00,000/- along with  interest towards harassment cost.

    O.P. has contested this case by filing written version, denying and disputing  all the material allegation level against them, stating, inter alia, that according to the said agreement if any dispute arises it will  be settled by Arbitration under the Arbitration and Conciliation Act, 1996 by  an Arbitrator to be  appointed by the O.P. and further stated that the complainant failed to make payment in terms of the agreement. Accordingly an Arbitrator has been appointed and as per  his order dated 12/11/2016 a Receiver was appointed to take possession of the machine in question and to sell that said machine for a sum of Rs.8,72,096/- along with VAT for  adjustment of the remain  loan payable by the complainant.  The O.P. further stated that even  after selling of the said repossessed machine  an amount of Rs.7,62,674/- along with interest  is still remaining  as outstanding towards the loan amount which must be paid by the complainant.  Accordingly the O.P. has prayed for direction to pay the remaining outstanding of  Rs.7,62,674/- along with interest and also prayed for dismissal  of the case.

Both parties adduced evidence by affidavit. In course of hearing Ld. Advocate for the complainant has submitted that the complainant is a consumer under the O.P.  as per provision of section 2(I)(d) of C.P. Act 1986. Ld. Advocate for the complainant has further submitted that the repossession of the machine in question has not been done through due process of law and therefore, the O.P. may be held deficient in

Contd………..P/3

                                         

                                                                                     

                                                                         ( 3 )

service. In support of his contention Ld. Advocate for the complainant  has furnished decision of the  Hon’ble Supreme Court  reported in (1) 2009(4) CPR113(SC) Madan Kumar Singh Vs. Disst. Magistrate Sultanpur & Ors. Civil appeal no.5155 of 2009, (2) 2012(I) WBLR (SC)1 CITICORP. MARUTI FINANCE LTD. Vs. VIJAYALAXMI Civil Appeal no.9711 of 2011.

Ld. Advocate for the O.P. has submitted that the complainant is not a consumer under section 2(I)(d)  of C.P. Act, 1986, since he plied the vehicle by engaging a paid driver and a paid cleaner. Ld. Advocate for the O.P. has further submitted that complainant must abide by the terms of the agreement but he failed to repay the loan as per terms of the agreement and as per terms of the agreement parties were bound to approach the Arbitrator under  provision of Arbitration and Conciliation Act  1996, if any dispute has arisen and in accordance with that provision the O.P. approached to Arbitrator and accordingly the Arbitrator  passed an order on  12/11/2016 directing to sell the repossessed vehicle to realize the outstanding loan amount and the O.P. did the same accordingly.

In support of his contention the Ld. Advocate for the O.P. relied upon the decision of Hon’ble Apex Court I(2004) CPJ488{Laxmi Engg. Works Vs. P.S.G. Industrial Institute} Civil Appeal no.4193 no. of 1995.

           

                                           Points for determination.   

1. Whether the complainant is a consumer under the O.P. ?
2. Whether there is deficiency in service on the part of the O.P. ?
3. Whether the complainant is entitled to get the relief as prayed for ?

                                            Decisions with reasons.

              Point no.1.

                            Having heard the submission made by both sides and on perusal of the documents on record, it appears that the complainant availed a loan of Rs.19,00,000/- disbursed by the  O.P-Financial Service  Ltd. for purchasing a JCP Machine and accordingly an agreement for loan  was executed on 27/01/2015 by and between parties under certain terms and conditions. It  further appears that the complainant has stated in petition of complaint that he used to ply the said vehicle for earning his livelihood by means of self employment. However while the complainant was replying in respect of  cross-examination on dock he has deposed I engaged one driver and one helper in running the said vehicle.

Contd………..P/4

                                         

                                                                                     

                                                                                 ( 4 )

 

The complainant has cited the decision of Hon’ble Supreme Court but the same is not befitting to this instant case since the content of the said case is different.

To determine the point whether the complainant can be considered as consumer, we rely upon the decision of Hon’ble Apex Court in civil appeal no.4193 of 1995 Laxmi Engg. Works Vs. P.S.G. Industrial Institute, whether in their lordships pleased to hold that a person if purchases the machine or a taxi or an auto rikshaw can be included in the definition of consumer only if he  operates himself. In the  instant case the complainant has deposed on dock that  he has engaged one driver and one  helper to ply the said vehicle.  Therefore, in the light of the judgment in Laxmi Engg. Works we also hold that the said  vehicle was purchased for commercial purpose and hence the complainant cannot be considered a consumer under the O.P. as per provision of section 2(I)(d) of C.P. Act, 1986.

Point no. 1 is decided accordingly.

Since the point no.1 has been decided negatively, there is no scope to enter into the merit of the case and to decided point nos. 2 & 3.

In the result the petition of complaint does not succeed.   

                   Hence, it is,

                                                           ORDERED

                                                           that consumer complaint case being no.03/2017 is hereby dismissed but considering the circumstances without cost.

           Let plain copy of this order be given to the parties free of cost.

                Dictated and Corrected by me

                           Sd/- S. Sarkar                            Sd/- P.K. Singha                        Sd/-B. Pramnik                          

                               Member                                      Member                                     President

                                                                                                                                District Forum

                                                                                                                             Paschim Medinipur