BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:109/2022

DATED: 30^th November 2022

PRESENT: -     Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                       Sri. G. SREEPATHI, B.COM., LL.B., MEMBER       

:ORDER:

Sri. G. SREEPATHI, MEMBER              

The complainant has filed this complaint under section 35 (1) of Consumer Protection Act, 2019 (herein after referred to as the Act) against the opposite party No.1 and 2 and prays before this Hon’ble commission to direct opponents to settle the loan instalment transactions by reducing to 36 months instead of 43 months and to provide opportunity to the complainant to clear of the loan by paying regular monthly instalments or otherwise for one time settlement by reducing the rate of interest for   the same,   also   to  direct OP’s to pay

compensation amount of one lakh towards mental agony, loss of energy time and Cost of legal proceedings to the complainant with 9% interest from the date of collection till its realization and to grant such other reliefs.

2. The case of the complainant in brief is as under:

        The opponents are running business under the name and style of M/s HDB financial services Ltd., Head office at Ahmedabad, Gujarat State and Branch office at Chitradurga. Complainant is doing transport business in Chitradurga City.  Complainant has purchased EICHER PRO 1110 by availing loan of Rs.7 Lakh from OP-1 and the details of said vehicle respectively Reg. No.KA-25-AA-5585, having engine No.E4113CDGD082859 and Chassis No.MC2F7HRCOGD116340. The EMI amount was Rs.25,680/-. Also loan A/c No.8949892, UCIC No: 11835314. Complainant stated that, he has paid monthly instalment regularly to OP-1 Finance Company without fail. As per Statement of Account of OP-1 complainant is due to pay Rs. 62,994.20/- as on 05/06/2022. As per opposite parties schedule of Loan agreement, repayment of installments starts from 04-11-2019 and ends with 04/11/2022 as per letter of OP’s dated 04/11/2019. In their statement of account for the period from 01-01-2008 to 06-06-2022, it shows that moratorium tenure 4 monthly instalments, by showing Principal amount due of Rs.2,71,279/- and instalment amount ends on 04-05-2023. Complainant has submitted that due to Covid-19 pandemic, he was unable to pay the balance amount of loan properly 2 instalments, due to some Family problems. The OPs have charged heavy and abnormal rate of interest on outstanding amount.

      3. Complainant stated that, he has requested OP finance Company to consider the moratorium period and make restructure of loan payment as per law but the OP’s Company have made  43 months extension for payment of loan as against the procedures of R.B.I. Rules. With this instalments will be more without taking consent and without

informing  the  complainant.  OP’s  company have made restructure of

loan payment for a period of 9 months. On approaching OP’s complainant informed that if the instalments are not reduced to 36 months, he will be constrained to report the same to R.B.I. ombudsman, which shows prima facilely there is deficiency of service and unfair trade practice towards customers of OP’s. Complainant submits he is ready to pay the monthly loan instalments without fail if the restructure period should be for 36 months only and amount may be fixed accordingly. Also he is ready to clear the loan amount under one time settlement if OPs reduces rate of interest levied on the principal amount for which OP’s have refused. On 21/06/2022 complainant issued legal notice to OPs and they have not complied to the notice even on acknowledgement. Hence this complaint.

        4. The OP’s filed their version on due service of notice and denied that there is any deficiency of service on their part. The OP’s have submitted that the vehicle in question was purchased for the purpose of commercial use as per loan agreement dated 30/09/2019 mentioning as Commercial use. In view of the same consumer protection Act are not applicable. In this respect OP’s have quoted Judgements reported in 2017 (1) CPR (NC) 686 decided in between Dr. Hemant & Another Vs. M/s Zenal Constructions Pvt. Ltd. & Another dated 23.02.2017, where in it is held that “commercial users cannot maintain consumer complaint”. The same aspect has been reiterated by the Hon’ble National Commission in another judgment reported in 2017 1 CPR (NC) 63 between Dnyandeo Patiba Bhosale Vs. Terex Equipment Pvt. Ltd. & Others dated 12.01.2017. As held by the Hon’ble National Commission this complaint has to be rejected by the commission without looking the other aspects on merits. The OP’s have further submitted that the   vehicle purchased was ‘EICHER PRO 11.10’, & the same must be used only for business purpose that is commercial usage and extent of loan was Rs.7,00,000/-. In the schedule of loan agreement

it is mentioned as ‘COMMERCIAL USE’. On this ground the complaint required to be rejected.

        5. Further opponents stated in their version that on approach by

the complainant as main applicant and another namely Mrs. Syeda Sulthanabanu as co-applicant OP’s have sanctioned and disbursed financial assistance of Rs.7,00,000/- under the product “COMMERCIAL VEHICLES” under loan agreement No.8949892 dated 30.09.2019 for purchase of the vehicle EICHER 11.10, out of the loan amount borrowers purchased the said vehicle.  Also same was registered with jurisdictional R.T.O. vide its KA-25-AA-5585 with hypothecation entry in OP’s favour. Complainant agreed to repay the loan liability amount by way of monthly equal installments of Rs.25,680/- each in installments originally and the same were increased to 43 installments due to availing moratorium facility during the period of Covid-19 pandemic as permitted by the RBI commencing from 04.11.2019 to 04.05.2023. Also as per request of Complainant for availing 4 installments as moratorium facility seeking postponement of installments during Covid-19 pandemic period as permitted by the RBI. The RBI permitted the financial institutions to levy further interest on the amount availed by to its customers. In the complaint, Complainant availed 4 installments as moratorium facility amounting to Rs.25,680/X 4 = Rs.1,02,720/-. The said amount of facility subject to levying  interest. Accordingly further interest calculated on amount of moratorium is amounting to Rs.25,680/-x 3 = Rs.77,040/-. With this original loan tenure of 36 months got extended to 43 installments. The original loan tenure was to close by 04.10.2022, however due to availing moratorium facility of Rs.1,02,720/-, 4 installments plus interest on moratorium amount, The tenure of loan increased to 43 installments since in total 7 installments were increased and accordingly tenure of loan is to complete by 04.05.2023. The statement of account reflects that total installments are 43 and tenure of installments commencing from 04/11/2019 to 04/05/2023. In view of the above OP’s are justified

in extending the original tenure of loan of 36 installments to 43 installments. With regard to moratorium facility Complainant himself has admitted.

6. Further opponents stated in their version, the statement of Complainant loan account reveals that his repayment mode got dishonored for 25 numbers of times for the reason insufficient funds,  which clearly reveals that his  financial credibility towards agreed repayment of loan facility. The statement reveals that he is overdue of Rs.64,713/as on 28.07.2022 apart from future installments. Even of his irregular payment he paid only 28 installments out of total 43 installments. The Complainant’s principal outstanding itself is  Rs.2,49,908/- total foreclosure amount is of Rs.3,07,806.90/- as on 28.07.2022. The  amount will be varied in view of imposition of further interest and other charges applicable till payment of entire liability amount to the OP’s by  Complainant.

7. OP’s states in their version that, timely payment is the essence of the contract, contrary to the agreed terms, the complainant had become chronic defaulter in repayment of the agreed installments for the reasons best known to him. Despite, several demands, reminders, requests and followups, complainant had failed to pay the timely payment as and when it was required for payment under the agreed repayment schedule. Complainant continued in default even after relaxation of Covid-19 lockdown and even after providing moratorium facility. Even as per the loan agreement, complainant failed to follow arbitration clause that is clause – 31 of the agreement entered in between him and OPs. Likewise opponents denied regarding deficiency of service and Unfair Trade Practice by them towards complainant.

8. While proceeding with the complaint, Counsel for complainant filed Application on 15/10/2022 for advancement of case from 28/10/2022 to 14/10/2022 and also application U/s 38 (8) of C.P. Act 2019 along with affidavit seeking order from this Hon’ble Commission

to grant ad-interim orders of Injunction by directing defendants to release schedule vehicle till disposal of complaint for which OP’s have strongly objected by submitting their objection  Apart from the Interim application it is observed in the  prayer  column  of  complaint wherein there is no prayer made by the complainant in complaint in respect of release of the vehicle. On hearing from both sides IA-2 filed by complainant is dismissed.

9. Complainant and OP’s filed their affidavit in lieu of evidence. The documents produced by the parties came to be marked as Ex.A-1 to Ex.A-9 and OP’s have produced some of the Xerox documents and marked as Annexure B-1 loan agreement copy. The learned Counsel appearing for the complainant has pressed and contended that vehicle in question came to be seized by the financier without giving notice which is illegal. The complainant re-iterated the facts of the complaint in evidence filed by way of affidavit.

10.  The question that arise for our consideration are;

1. Whether the complainant is entitled for relief?

2) If so What Order?

11. Our finding on the above points are as follows:

Point No. (1) Nagative.

Point No. (2): As per order for the following reason.

REASONS

      12. Point No.1: The decision referred by OPs stated in para-4 of this order are relevant to this case and also further on observing decisions reported in CPR-2017(1) Page No. 612 (NC) in between M/s Magma Fin corp. Ltd.- Petitioner Vs Ravi Rajan Kumar- Respondent, Hon’ble National Commission, New Delhi quoted that “once a loan is advanced by any financial institution to the borrower  it is their legal right to recover money in accordance   with   terms   and   conditions  governing grant of loan. As

reported in CPR 2019 (2) page 520 (NC), in a case between Prerna Malhotra and Another- Complainant Vs Pureath Infrastructure Ltd., Opposite Party, it is noted that property purchased for “commercial purpose” will be outside the purview of the consumer protection Act. In the said complaint no where in the complaint, complainant has not mentioned that the said vehicle   has been purchased for  his  livelihood.  On perusal of the Bank

statement it reveals that the repayment made by complainant by way of cheque got dishonored for 26 number of times for the reasons best known to him. it clearly reveals complainants financial credibility towards agreed repayment facility. As reported in CPR-2012 (3) page No.89 it is observed by the Hon’ble Andra Pradesh State Consumer Dispute Redressal commission, Hyderbad in a case between V Sreedhar Gaud- Appellant Vs Magma Shrachi Finance Corporation Ltd. & Another- Respondent 2013 (1) CPR 351 (NC) between Rampal Singh-Petitioner Vs General Manager, Sri Ram Transport- Respondent, it is observed in both the above cases “Financier can reposses vehicle in case of default in repayment of loan amount”. Also as reported in CPR 2017 (March) page 637 it is noted that, “repossession of vehicle due to non-repayment of loan amount is Justified”. In one more decision of Hon’ble National Commission, New Delhi, reported in CPR 2019 part 6 page-182, it is quoted that, the complainant had to follow the terms and conditions of the agreement. Thereafter, the responsibility of OP starts to follow its part of contract. In another citation reported in CPR March-2017, page No.315, it is quoted that, parties are bound by agreement & nothing can be added or detracted from agreement. Further on perusal of prayer column of the complaint filed by the complainant is only that in respect of reducing loan instalment transactions by 36 months instead of 43 months and also to provide opportunity to complainant to clear the amount in regular instalments or otherwise for one time settlement by reducing rate of interest on the same which cannot be directed by the Hon’ble commission as the same has to be settled in between complainant and OP’s. As reported in CPR 2019 (2) page 392 (NC) in a case between Gaurav Govind Tripathi- Petitioner Vs. Manager,  Divya   Prem    Sewa  Mission  &  Another – Respondents,  the

important point noted is that “ If no prayer is made either in complaint or in the appeal , it cannot be considered directly. On going through the facts of the complaint the complainant has not prayed before this Hon’ble Commission to order for release of vehicle. Complainant failed to substantiate his ground regarding deficiency of service rendered by OP’s. Hence complainant is not entitled for any relief.

13. Point No.2: Being of that opinion, we proceed to pass the following:

::ORDER::

        The complaint filed by the complainant is hereby dismissed. No order as to costs.

Supply free copy of this order to the parties.

(Dictated to the Steno directly on computer, typed by him transcript corrected, revised and then pronounced in the open commission by us on 30^th November 2022.)

            MEMBER                                               PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Sri. Syed Bakshi s/o Syed Meer Mohammed, by way of affidavit     

            evidence.

Witness examined on behalf of opponents:

DW-1: Sri. Sunil Sankapale S/o Vithalrao, by way of  affidavit

           evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponents:

Nil   

            MEMBER                                               PRESIDENT

GM*