Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  06.11.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite party no. 1 or the opposite parties to release the vehicle to the complainant in good and running condition without delay/demand any money/dues/interest, from the date of receiving the notice on account of faults, deficiency in services and / or breach of terms and condition of the contract.
2. To direct the opposite party no. 1 and 2 to accept installment according to terms and condition of the contract without charging any interest from the date of seizure to release to the claimant.
3. To pay Rs. 75,000/- ( Rs. Seventy Five Thousand only ) as compensation.
4. To direct the opposite party no. 1 and 2 that the seized vehicle not be sold/disposed/destroyed/damaged till disposal of the complaint case in hand in the interest of justice.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The cause of action started on 16.08.2011, hence the complaint case is well within limitation under the Consumer Act.
2. The complainant is a consumer of the opposite parties under the law. She has purchased a vehicle model Tata Magic 8 seats from the opposite party no. 2 with the help of the opposite party no. 1 on certain terms and conditions under contract no. 5000770388. The opposite party no. 1 financed only Rs. 2,25,000/- to the complainant for purchasing the vehicle from the opposite party no. 1. From the records, it appears that the opposite party no. 2 charge with the complainant and the date of loan disbursal was 18.08.2011 and date of maturity was 15.07.2014, total no. of installments. Were, 35 installments mode of payment was monthly installments. ( Vide Annexure – 1 )
3. The complainant was paying monthly instalment to the opposite party no. 1, in time under the schedule and the same has been accepted by the opposite party no. 1 or 2 and receipts have been issued to the complainant either the opposite party no. 1 or the opposite party no. 2. ( Vide Annexure – 2 )
4. On 20.10.2012 the opposite party no. 1 send goondas/criminals for snatching the vehicle from the complainant and they have done their work properly. The opposite party no. 1 issued a seizure list to the owner of the vehicle next day. ( Vide Annexure – 3 )
5. The opposite party no. 1 issued a notice dated 22.10.2012 to the complainant by registered letter. The complainant has received the legal notice on 26.10.2012. in this legal notice it has been stated that the company can take legal action under the terms and conditions of the contract, if the complainant fails to repayment loan amount. From the perusal of the notice dated 22.10.2012, it is very transparent that the opposite party no. 1 has nowhere stated that the vehicle can be snatched without complying mandatory provision or adopting legal steps against the so called defaulter. It is very important to mention here that the financer has not given time to the complainant. The vehicle has been snatched in between 20.10.2012 to 26.10.2012. It would be proved from the seizure list itself. ( Vide Annexure – 4 )
6. The complainant has tried to meet the opposite parties but the opposite parties are not ready to meet with the complainant in spite of repeated requests made by the complainant. The complainant has no option but to move to this court, therefore this complaint case is being filed.
7. From the perusal of the seizure list and legal notice dated 22.10.2012 it will be cleared that the opposite party no. 2 has played wrong game with the complainant due to bad intention it is bad unlawful. It is well settled law that we are bound with the terms and condition of the contract, the opposite party no. 1 has crossed its limits, jurisdiction.
8. It is humbly stated that on one hand the opposite party no. 1 issued a legal notice to the complainant and given 48 hours to the defaulter to make payments due amount if any and on other hand the opposite party no. 1 snatched the vehicle without issuing a notice under the law of contract/agreement executed between the two parties. The opposite party no. 1 has ignored legal action due to malafide intention under the law and / or terms and conditions of the agreement executed between the parties concerned. It is bad and illegal. The opposite party no. 1 cannot play double game with the complainant. The actions of the opposite parties are faulty and against the judgement of the Hon’ble Supreme Court of India.
9. The opposite party no. 1 has not given time to the complainant to prove her claim with regards to repayment of loan amount and / or to repay due amount subject to verification of the records. Certainly this attitude will be called violation of contract/agreement/natural justice under the law. It is well settled law that at least one opportunity must be given to the so called defaulter to prove his/her claim by the opposite parties before snatching the vehicle.
10. It is submitted that the opposite party no. 1 has snatched bread/food from the complainant’s mouth without committing faults. The complainant has only one means to earn money for the purpose of livelihood. The opposite party has committed faults, deficiency under the law. The complainant is suffering loss to faults of the opposite parties, loss cannot be compensated in future.
11. The opposite party no. 1 has no legal right to demand interest on dues amount from the date of snatching the vehicle in question because the opposite parties have committed wrong with the complainant. The opposite parties have ignored terms and conditions of the agreement.
12. It is submitted that, it is great possibility that either opposite party no. 1 or the opposite party no. 2 can sell the seized vehicle to other customer for gaining maximum benefits without completing all legal formalities/notice to the complainant. The opposite parties can adopt illegal way only to harass the complainant. It is submitted that the vehicle should not sell until and unless matter/disputes is cleared by competent authority/court/forum.
13. The other law points, documents, evidences shall be put up at the time of argument or as and when required under the law or facts to proof her claim.

3. The Opposite Party no. 1 in his written statement has submitted as follows :-

1. The opposite party, Tata Motors finance Ltd. a company duly incorporated under Section 45-IA of the RBI Act 1934, as a Systemically Important Non – Banking Finance Company, having its registered office at Nanavati Mahalaya, 3^rd Floor, 18, Homi Mody Street, Mumbai – 400001 is a renowned “Asset Finance Company” across India and is widely acclaimed for its reputation and service. The answering opposite party has craved a niche for themselves in a sector of vehicle finance across the country. The borrower of the loan and the lender are bound by the terms and conditions applicable for the loan stipulated under the agreement.
2. The present complaint, filed by the complainant is an abuse of process of law and is not maintainable nor even entertainable as the complainant has approached this forum by suppressing the material facts.
3. From perusal of the instant complaint, it would be observed that averments made therein, are vague, baseless and with malafide intention. The complainant has made misconceived and baseless allegations of deficiency in service without any documentary evidence in support of the allegations made in the complaint.
4. The complaint filed by the complainant does not fall within the definition of a ‘Consumer Dispute’ under the Consumer Protection Act as there is neither any unfair trade practice adopted by this opposite party nor any deficiency in service being established against the opposite party, hence the averments and /or allegations made therein frivolous, baseless and misconceived and, the complaint is liable for rejection and the same may kindly be rejected in totally.
5. The complainant is not a ‘consumer’ within the meaning of the terms ‘consumer’ as defined under section 2(1) (d) of the Consumer Protection Act, 1986 as he has purchased the said vehicle for business purpose and has been used for commercial purpose. Further, the complainant has not produced any record to show that the vehicle was being used for his livelihood. Thus it would be evident that the vehicle in question has been used extensively by the complainant for commercial activities and as such the complainant cannot claim status of a ‘consumer’ under the Consumer Protection Act 1986 and is not entitled for any relief from this forum. The Hon’ble Supreme Court of India, in the case of Laxmi Engineering Works vs. PSG Industries Institute ( 1995 II CPJ I (SC) held that, if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the Customer Protection Act.

Moreover, it has been held in Padma V. Amrapurkar vs. J Williams and Co. I (1992) CPJ 150 (154), where the Ambassador car in question was purchased for running a Taxi, it was held that the complainant was not a consumer within the meaning of Section 2(1(d) of the Consumer Protection Act. On this ground alone, the complaint merits dismissal.

6. This forum, while considering the prayer as sought for by the complainant in the present complaint, ought to keep in mind the well established maxim “ One who comes equity must come with clean hands”. The complainant in this instant case has been a chronic defaulter of the installments. The complainant has defaulted in repayments within the prescribed time of the installment. It is quite evident that the complainant himself has failed to conform to the terms and conditions of the said agreement and has acted in a pretentious manner. Hence, there cannot be any complaint of deficiency of service against this opposite party by the complainant and the complaint deserves to be dismissed with cost.
7. The complainant with best known reasons has not pleaded that the complainant had applied voluntarily for the loan facility after fully knowing well about the terms and conditions of the loan. In this regard, reference may be taken of the Hon’ble Supreme Court of India in this case of Bharti Knitting Company vs. DHL Worldwide Express Courier (1996) 4 SCC 704, whereby it was held that when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and circumstances, in which he has signed the contract. He is bound by its terms and conditions of the contract.
8. It is relevant to mention that as per terms and condition of the Loan Cum Hypothecation Cum Guarantee, the matter was referred to Learned Arbitrator namely Mr. Nitin Chavan in which on 31^st Oct 2012 an order under Section 17 of Arbitration and Conciliation Act has been passed. The order under Section 17 of Arbitration and Conciliation Act passed by Learned Arbitration on 31.10.2012 runs like this:

“in view of the averment made in the claim petition and the application under Section 17 of Arbitration and Conciliation Act 1996, I, therefore, Do hereby order and determine that, the respondents to hand over the possession of the said vehicle i.e. Make/Model/Registration no. TATA/TATA MAGIC 8 Seat/ BR – 01PC – 6340 and Engine No. / Chassis No. 2751D106FYYSA5297/MAT445112BVF49027 to the duly authorized representative of the claimant, who is appointed as the Commissioner/receiver and further empowered to take possession of the said vehicle from the respondents and/ or from any other person, who may be in possession of the said vehicle with necessary police aid from the officer(s) in Charge, in whose jurisdiction, the said vehicle situated. The claimant is specifically directed to keep the said vehicle in safe custody, without causing loss or damages to the same. Liberty granted to the respondents to apply for modification of order, if any.”

9. The instant complaint is liable to be dismissed under section 26 of the Consumer Protection Act, with costs for being false, frivolous, vexatious and mis – conceived. It is submitted that the complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite party, which is a company of long standing and high repute and as a ruse to extract money without just cause or valid reason.
10. It needs to be mentioned that the complainant has availed a loan facility of a loan amount of Rs. 2,25,000/- ( Rs. Two Lac twenty Five Thousand only ) and a contract value of Rs. 3,33,228/- ( Rs. Three Lac Thirty Three Thousand two Hundred twenty Eight only ) for the vehicle Model TATA MAGIC 8 SEAT and Engine No. 2751D06FYYSA5297 where an initial Hire amount of Rs. 97,837/- ( Rs. Ninety Seven Thousand Eight Hundred Thirty Seven only ) has already been paid by the complainant. It needs to be further mentioned that to clear the loaned amount along with interest in regard to the said agreement the complainant had to make monthly installment payment of Rs. 9,500/- ( Rs. Nine thousand five Hundred only ) for the next 34 monthly terms which matures on 15.07.2014 along with an amount of Rs. 10,228/- ( Rs. Ten Thousand two Hundred Twenty Eight only ) as first installment being commenced from 15.09.2011. ( Annexure – A )
11. It is also relevant to mention that 17 post dated cheques given by complainant has dishonored.
12. There is neither deficiency nor unfair trade practice on the part of answering opposite parties and the present complaint is liable to be dismissed as it fails to prove any cause of action against the answering opposite parties.

We have minutely gone through the record and have heard both the parties at length.

The facts which have been narrated in the complaint petition is that the complainant has purchased a vehicle in question on hire purchase from the financer i.e. opposite party no. 1 on certain terms and conditions and the complainant alleged that the financer has seized the vehicle without affording reasonable opportunity to arrange remaining installment of the loan but the complainant has not mentioned the specific date on which the vehicle has been seized and it has been stated in Para – 3(D) of the complainant that the vehicle has been snatched in between 20.10.2012 to 20.10.2012 which would be proved from the seizure list itself.

On the other hand the opposite party in affidavited written statement has submitted in clear words in Para – 5 thereof that the vehicle in question has not been repossessed by them as the inventory list Annexed by the complainant with his complaint petition does not contain printed Logo and name of “ TATA MOTORS FINANCE LTD.”. Further the opposite party no. 1 has submitted that the matter has gone to arbitrator in which on 31.10.2012 an order passed and thereafter award was made on 18.04.2013 and therefore it has been submitted in the written statement that in view of award being passed this forum has no jurisdiction to entertain the present complaint petition.

The complainant has not controverted the submissions made in the written statement of the opposite party no. 1 and thus it manifests that the vehicle has not repossessed by the opposite party no. 1.

In view of the discussions made above We did not find any merit in the case and the same is dismissed but without any cost.

The opposite party no. 1 is free to take proper action as per rule/ law against the complainant for realization of the loan amount along with interest accrued on the same.

                                        Member                                                                   President