Karnataka

Chitradurga

CC/55/2015

Syed Umar S/o. Late Syed Ghouse - Complainant(s)

Versus

The Branch Manager, Cholamandalam Investment and Finance Co.Ltd., - Opp.Party(s)

Syed Shahbuddin Husaini

06 Jan 2016

ORDER

 

COMPLAINT FILED ON : 20/06/2015

     DISPOSED ON: 06/01/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 55/2015 DATED:  6th January 2016

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,              MEMBER

 

COMPLAINANT	Syed Umar, S/o Late Syed Ghouse, R/o Kurubarahalli, Taluk and District Chitradurga.   (Rep by Sri. Syed Shahbuddin Husaini, Advocate)
OPPOSITE PARTIES	1. The Branch Manager, Cholamandalam Investment and Finance Company Limited, Holalkere Road, Chitradurga-577501.   2.  The Branch Manager, Head Office, Cholamandalam Investment and Finance Company Limited, No.2, NSC Bose Road, Chennai-600001.   (Rep by Sri. G.K. Mallikarjuna Swamy,  Advocate)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to the OP No.1 to pay Rs.10,00,000/- with 12% interest and to grant court cost and such other reliefs.

 

2.     The brief facts of the case of the complainant are that, he has purchased Eicher 11-10 lorry bearing Registration No.KA-16-B-7469, Engine No. E483CDDA600314, Chassis No.MC233HRC0DA078721 for a sum of Rs.11,51,813/- by obtaining loan of Rs.10,99,372/- from the OP No.2 under hire purchase agreement executed between complainant and OP No.1 on 28.12.2012 to be repaid in 60 monthly installments of Rs.26,000/-, by mortgaging his land property for security purpose.  It is further stated that, complainant was paying monthly installments regularly and in the recent days due to financial crisis, he was unable to pay the installment amount within time.  Complainant requested the OP No.1 to provide three months time for repayment of the loan installments and the OP No.1 gave assurance that, he has to clear up to date installments within three months.  But all of a sudden on 27.05.2015 to utter shock, without his knowledge or prior notice OP forcibly taken possession of the said lorry with the help of rowdies from the lawful possession of the complainant without following the rules and regulations framed by the Reserve Bank of India, which is illegal and against the interest of natural justice.  It is further stated that, immediately complainant approached the OP and requested to release the lorry but, the OP did not head up his request.  The complainant has paid Rs.4,71,620/- in total to the OPs towards repayment of the loan amount through cash and also OPs have collected insurance premium.  It is further stated that, at the time of taking possession of the lorry from the lawful custody of the complainant, it was valued about more than Rs.10,00,000/-, the same was well within the knowledge of the OPs.  It is respectfully submitted that, complainant approached the OPs several times to provide an opportunity for repayment of the loan installment but, the OPs failed to perform their part of contract.  Further he came to know that, the seized vehicle has been played in the road.  Complainant approached the OPs and enquired about the same but the OPs did not answer properly.  Immediately, complainant gave representation on 16.06.2015 to the Regional Transport Office, Chitradurga and requested not to make any transfer and not to issue FRC, CC, NOC or DRC in favour of anybody without his knowledge.  It is further submitted that, he is ever ready to pay the balance 4 installments, which remains due on a condition that, the OPs have to handover the seized vehicle to his custody.  The cause of action arose to file this complaint on 27.05.2015 the date on which the OPs have taken the lorry into their unlawful possession.  The conduct of the OPs in seizing the vehicle amounts to deficiency of service so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

3.     On service of notice OPs appeared through Advocates and filed version stating that, the complaint is not maintainable in view of the fact that there is one 'Arbitration' clause and on 'Jurisdiction' clause in the agreement executed between the complainant and OPs, in which the complainant has specifically agreed that the disputes if any between the parties have to be referred to the sole Arbitrator for adjudication through Arbitration.  It is further submitted that, complainant cannot invoke the provisions of the C.P Act and the present complainant is not maintainable and the same is liable to be dismissed in limine.  It is further submitted that, under Section 2(d) of the C.P. Act, 1986, the term "Consumer" means "any person who – buys goods for consideration – but does not include a person who obtains such goods for re-sale or for any commercial purpose".   Complaint is not maintainable as the complainant himself has admitted that the nature of transaction is a commercial transaction.  Complainant is not a consumer as defined under the Act.  He is a borrower under a contract governed by the contract itself.  It is further false to say that, OPs by using their henchmen seized the vehicle without the knowledge of complainant and prior notice on 27.05.2015.  Complainant was irregular in making repayment of the loan installments inspite of several reminders.  OPs have taken custody of the said vehicle on 27.04.2015 with the knowledge and acceptance of the complainant and after exercise of due procedure and formalities.  It is further submitted that, on 15.04.2015 the OPs have issued final call letter to the complainant and also to the guarantor requesting to repay the outstanding due through RPAD on 27.04.2015 and the same was duly served on the complainant and also to the guarantor.  OPs have issued pre-seizure intimation to the Inspector of Police, Rural Police Station, Chitradurga through RPAD on 15.04.2015 and all the formalities have been followed by the OPs while taking repossession of the vehicle.  After repossession of the vehicle, the OPs issued post seizure intimation to the Inspector of Police, Rural Police Station, Chitradurga by RPAD dated 27.04.2015 but, the complainant failed to respond to the said notice.  Complainant himself is responsible for the default in repaying the loan installments and the OPs cannot be held responsible for the willful fault of the complainant.  It is further stated that, complainant signed the loan agreement as principal borrower agreeing and accepting the terms and conditions contained therein and the OPs have not committed any deficiency in service.  It is further stated that, complainant approached the OPs requesting to extend the financial assistance to purchase Eicher 11.10 bearing Rgistration No,.Ka-16-B-7469 and the OPs sanctioned Rs.10,99,372/- and loan agreement No.XVFPDAV00000908270 was entered into between the parties on 18.02.2013 agreeing to repay the loan amount in 60 equal monthly installments along with interest commencing from 10.03.2013 to 10.02.2018.  complainant became a defaulter and also the payment of installments became irregular and the cheques issued towards payment of the installments were got bounced and inspite of several demands and notice, he did not come forward to pay the outstanding due amount.  It is further submitted that, the vehicle in question hypothecated always remained with the OPs and it has got every right to reposes and to sell under the contract.  OPs have given sufficient time to the complainant to discharge his part of liability but, he did not come forward to pay the outstanding due, therefore, the OPs with no other option, the vehicle was repossessed peacefully on 27.04.2015 after following the rules and regulations of the R.B.I. and therefore, there is no deficiency in service and hence, prayed for dismissal of the complaint.    

        4.     Complainant himself examined as PW-1 by filing affidavit evidence reiterating the contents of complaint and documents are marked at Ex.A-1 to   Ex.A-9. 

5.     On behalf of OPs one Sri. Thippeswamy, the P.A Holder and Senior Legal Co-ordinator of OPs examined as DW-1 by filing affidavit evidence and documents have been marked as Ex.B-1 to Ex.B-17.  

6.     Written arguments have been filed and oral arguments heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complaint proves that, OPs have committed deficiency of service and he is entitled for compensation as stated in her complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Negative.

        Point No.2:- As per the final order.

                                        ::REASONS::

9. Point No. 1:- It is not in dispute that, complainant purchased Eicher 11-10 lorry bearing Registration No.KA-16-B-7469, Engine No. E483CDDA600314, Chassis No.MC233HRC0DA078721 for a sum of Rs.11,51,813/- by obtaining loan of Rs.10,99,372/- from the OP No.2 under hire purchase agreement executed between himself and OP No.1 on 28.12.2012 to be repaid in 60 monthly installments of Rs.26,000/-, by mortgaging his land property for security purpose.  Complainant was paying monthly installments regularly and due to financial crisis ,he was unable to pay the installment amount within time.  Complainant requested the OP No.1 three months time for repayment of the loan installments but, all of a sudden on 27.05.2015 to his utter shock, without his knowledge or prior notice OP forcibly taken possession of the said lorry with the lawful possession of the complainant without following the rules and regulations framed by the Reserve Bank of India.   Immediately complainant approached the OP and requested to release the lorry but, the OP did not head up his request.  The complainant in all has paid Rs.4,71,620/- OPs towards repayment of the loan amount and also OPs have collected insurance premium.  At the time of taking possession of the lorry from the lawful custody of the complainant, it was valued about more than Rs.10,00,000/-, the same was well within the knowledge of the OPs.  Complainant approached the OPs several times to give an opportunity for repayment of the loan installment but, the OPs failed to do so.  Further he came to know that, the seized vehicle has been played in the road.  Complainant approached the OPs and enquired about the same but, the OPs did not answer properly and he ever ready to pay the balance 4 installments on the condition that, the OPs have to handover the seized vehicle to his custody.  The conduct of the OPs in seizing the vehicle amounts to deficiency of service.  

 10.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also relied on documents like true copies of  payment receipts marked as Ex.A-1, Copies of down payment receipts marked as Ex.A-2, Copy of post seizer intimation letter given to Rural Police, Chitradurga dated 16.06.2015 marked as Ex.A-3, Copy of renewal intimation letter marked as Ex.A-4, Copy of legal notice dated 15.06.2015 marked as Ex.A-5, Copy of endorsement issued by the RTO, Chitradurga dated 16.07.2015 marked as Ex.A-6,  Copy of R of R marked as Ex.A-7, Copy of DL marked as Ex.A-8 and Copy of RC marked as Ex.A-9.

 

  11. On the other hand, it is argued by the Advocate for OPs that, the complaint is not maintainable in view of the fact that there is one 'Arbitration' clause and on 'Jurisdiction' clause in the agreement executed between the complainant and OPs, in which the complainant has specifically agreed that the disputes if any between the parties have to be referred to the sole Arbitrator for adjudication through Arbitration and complainant cannot invoke the provisions of the C.P. Act and the present complainant is not maintainable and the same is liable to be dismissed.  Under Section 2(d) of the C.P. Act, 1986, the term "Consumer" means "any person who – buys goods for consideration – but does not include a person who obtains such goods for re-sale or for any commercial purpose".   Complaint is not maintainable as the complainant himself has admitted that the nature of transaction is a commercial transaction and he is not a consumer as defined under the Act and he is a borrower under a contract governed by the contract itself.  Complainant was irregular in making repayment of the loan installments inspite of several reminders.  OPs have taken custody of the said vehicle on 27.04.2015 with the knowledge and acceptance of the complainant and after exercise of due procedure and formalities.  On 15.04.2015 the OPs have issued final call letter to the complainant and also to the guarantor requesting to repay the outstanding due through RPAD on 27.04.2015 and the same was duly served on them.  OPs have issued pre-seizure intimation to the Inspector of Police, Rural Police Station, Chitradurga through RPAD on 15.04.2015 and all the formalities have been followed by the OPs while taking repossession of the vehicle and also issued post seizure intimation to the Inspector of Police, Rural Police Station, Chitradurga by RPAD dated 27.04.2015 but, the complainant failed to respond to the said notice.  Complainant signed the loan agreement as principal borrower agreeing and accepting the terms and conditions contained therein.  Complainant approached the OPs requesting to extend the financial assistance to purchase Eicher 11.10 bearing Registration No.Ka-16-B-7469 and the OPs sanctioned Rs.10,99,372/- and loan agreement No.XVFPDAV00000908270 was entered into between the parties on 18.02.2013 agreeing to repay the loan amount in 60 equal monthly installments along with interest commencing from 10.03.2013 to 10.02.2018 and became defaulter and the cheques issued towards payment of the installments were got bounced and inspite of several demands and notice, he did not come forward to pay the outstanding due amount.  The OPs have got every right to reposes and to sell under the contract.  The vehicle was repossessed peacefully on 27.04.2015 after following the rules and regulations of the R.B.I. and therefore, there is no deficiency in service and hence, prayed for dismissal of the complaint.    

 12.  In support of its contentions, OPs have relied on the notarized copy of loan agreement dated 18.02.2013 marked as Ex.B-1, Copy of final call letter with postal receipt dated 15.05.2014 marked as Ex.B-2, Postal acknowledgement marked as Ex.B-3, Copies of pre-sale letters dated 27.04.2015 with postal receipts marked as Ex.B-4 and Ex.B-5, Copies of pre-seizure intimation to Police dated 10.04.2014 and 27.04.2015 with postal receipts marked as Ex.B-6 and Ex.B-7, copies of valuation report and bill dated 30.04.2015 marked as Ex.B-8 and Ex.B-9, Copy of template for marking repo marked as Ex.B-10, Copy of notarized inventory of the vehicle marked as Ex.B-11, original copy of seizure/surrender report marked as Ex.B-12, original copy of statement of account for the period from 26.12.2012 to 23.04.2015 marked as Ex.B-13, Copies of letters dated 09.10.2015 written to Head Post Master, Davanagere dated 09.10.2015 by the OPs marked as Ex.B-14 and Ex.B-15,  Copy of letters dated 17.11.2015 written by Sub Post Master, Bheemasamudra to the Superintendent of Post, Chitradurga with regard to the disposal of RL No.RK4471281331IN and RK 4471282521IN marked as Ex.B-16, Copy of letter written by Postmaster Grad-III, Chitradurga dated 19.11.2015 to Post Master (HSG), Chitradurga with regard to the disposal of RL No.RK563748221IN and EK9351741171IN marked as        Ex. B-17.    

13.   On the basis of affidavit and documentary evidence complainant purchased the said lorry for transport business so it is for commercial purpose and so complainant is not consumer within the meaning of Section 2(1)(d) of C.P. Act so this forum has no Jurisdiction to decide the matter.

        There is no pleading as to it is for personal use or for earn his livelihood, on perusal of the decision reported in

II 1993(1) CPR 392

State Consumer Disputes Redressal Commission, Orissa,

Tara Prasad Swain V/s M/s Swaraj Mazda Limited and Ors.,

     Important Point

     When the complainant purchased truck for transport  business then purchase of vehicle being for commercial purposes complainant is not consumer.

2013 (2) CPR 548 (NC)

National Consumer Disputes Redressal Commission New Delhi.

M/s Indusind Bank Limited V/s Shri Avtar Singh.

                     Important Point

     Commercial users cannot maintain Consumer complaint.

1995(3) Page 93

State Consumer Disputes Redressal Commission Karnataka, Bangalore.

     Smt. Revathi Kalyan Kumar V/s K.S.F.C.

                     Important Point

     Where relation between complainant and Opp. Party is that of borrower and creditor, Complainant cannot be said to be a consumer in respect of loan transaction and cannot maintain complaint before consumer forum.

 

14.   On perusal of the above decisions they are aptly applicable to the facts and circumstances of the present case and supporting the contentions of OPs.

15. Advocate for complainant further argued that complainant was paying the installments and OPs have illegally taken possession and sold the vehicle without notice and prayed for allow the complaint. This part of the argument of complainant has been strongly resisted by the Advocate for OPs that complainant is still due to the OPs. When the complainant has admitted that, he has executed the loan agreement and borrowed the loan, he has to prove about the repayment but complainant but he failed to do so.  Therefore, the contentions of the complainant is not believable,  more than that it shows it is dispute between borrower and lender so it has to be decided before the Civil Court only and not a consumer dispute as per the following decisions.

1995( 3) Page 93

State Consumer Disputes Redressal Commission Karnataka, Bangalore.

     Smt. Revathi Kalyan Kumar V/s K.S.F.C.

                     Important Point

     Where relation between complainant and Opp. Party is that of borrower and creditor, Complainant cannot be said to be a consumer in respect of loan transaction and cannot maintain complaint before consumer forum.

I (2008) CPJ 121 (NC)

National Consumer Disputes Redressal Commission, New Delhi.

     Rajeshwar Prasad V/s BCL Financial Services Limited.

     Consumer Protection Act, 1986-Section 21(b) Jurisdiction-Summary-Hire purchase agreement-Vehicle financed-Complicated and complex questions of law and facts involved sign on blank papers and blank cheques alleged-Matter not adjudicable summarily required in revision.

II(2005)CPJ 491

Gujarat State Consumer Disputes Redressal Commission, Alahmedabad.

Ahosk Leyland Finance Limited. V/s Himanshu S. Thumar.

(ii) Consumer Dispute-Hire purchase agreement-Dispute related to account between parties, not consumer dispute; not adjudicable by Forum.

Result: Appeal Allowed.

I (2006 CPJ 614

Rajasthan State Consumer Disputes Redressal Commission, Jaipur.

     Om Prakash Shashtri V/s Ashok Leyland Finance Limited and anothers.

     Consumer Protection Act 1986-Sections 2(1)(d) and 2(1) © Jurisidiction-Hire purchase agreement- Breach of-Complaint regarding excess recovery of vehicle loan-Opposite party contended that complainant is not a ‘Consumer’ under Act –Complainant failed to comply with terms of hire purchase agreement-Complainant could not move Consumer Forum for Redressal of his grievances arising out of breach of contract where relationship between parties is that of debtor and creditor-complainant has to seek remedy in Civil Court.

       

IV (2015) CPJ 13A (CN) (Tri.)

Rajib Paul

Vs.

Shriram Transport Finance Company Ltd.,

 

Consumer Protection Act 1986 - Sections 2(1)(d), 15 – Consumer – Hire purchase agreement – Default in payment of installment – Forcible repossession alleged – Complainant miserably failed to establish that complainant used to drive his vehicle for earning livelihood by means of self-employment – Complainant not consumer.

 

        So in view of above decisions this forum has no Jurisdiction to decide the case and this is not a consumer dispute.

 

16.   We have carefully gone through the complaint submitted by the complainant and the version submitted by the OPs and the documents by both the parties, it is seen that, complainant purchased the Eicher 11-10 lorry bearing Registration No.KA-16-B-7469, Engine No. E483CDDA600314, Chassis No.MC233HRC0DA078721 for a sum of Rs.11,51,813/- by obtaining loan of Rs.10,99,372/- from the OP No.2 under hire purchase agreement executed between complainant and OP No.1 on 28.12.2012 to be repaid in 60 monthly installments of Rs.26,000/-, by mortgaging his land property for security purpose.  Complainant was paying monthly installments and thereafter, he was unable to pay the remaining installments within time and he requested to give three months time for repayment of the loan installments.  But, on 27.05.2015 OP taken possession of the said lorry from the lawful possession.  Complainant approached the OPs and requested to release the lorry but, the OPs did not head to his request.  The complainant in all has paid Rs.4,71,620/- towards repayment of the loan amount and failed to repay the loan amount.  After verifying the documents, it goes to show that, the complainant has paid a sum of Rs.4,97,829/- by way of installments and down payment amount of Rs.1,10,000/-, in all he has paid Rs.6,07,829/-.  The complainant has taken loan from the OP No.2 to the tune of Rs.10,99,372/-.  Therefore, it clearly goes to show that, the complainant was default in repayment of the loan installments to the OPs and when the loan is due to the OPs, they have got every right to seize the vehicle.   The OPs seized the vehicle after giving pre-sale intimation to the complainant.  Moreover, the complainant purchased the said vehicle for commercial purpose.      Hence, we come to the conclusion that, there is no deficiency of service on the part of OPs.  Therefore, the complainant failed to prove his case with regard to the deficiency of service on the part of OPs and he is not entitled for the relief as claimed.   So on the face of record it appears it is not a consumer dispute and so this forum has no Jurisdiction to try the case in view of above decision, this complainant is not a consumer and he has to approach the Civil Court only and hence Point No.1 is held as negative to complainant.

17.   Point No.2:- For the foregoing reasons, we pass the following.

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.  Complainant is at liberty to approach the competent Civil Court for the said reliefs.

        Under the circumstances parties are directed to bear their own costs.

 

        (This order is made with the consent of Members after the correction of the draft on 06/01/2016 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                   MEMBER                      PRESIDENT

 

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                -Nil-

On behalf of OPs one Sri. Thippeswamy, the P.A Holder and Senior Legal Co-ordinator of OPs examined as DW-1 by filing affidavit evidence taken as DW-1

 

Witnesses examined on behalf of OPs:

 -Nil-

Documents marked on behalf of Complainant:

01	Ex-A-1:-	True copies of  payment receipts
02	Ex-A-2:-	Copies of down payment receipts
03	Ex-A-3:-	Copy of post seizer intimation letter given to Rural Police, Chitradurga dated 16.06.2015
04	Ex-A-4:-	Copy of renewal intimation letter
05	Ex-A-5:-	Copy of legal notice dated 15.06.2015
06	Ex-A-6:-	Copy of endorsement issued by the RTO, Chitradurga dated 16.07.2015
07	Ex-A-7:-	Copy of R of R
08	Ex-A-8:-	Copy of DL
09	Ex-A-9:-	Copy of RC

 

Documents marked on behalf of Opponents:

 

01	Ex-B-1:-	Notarized copy of loan agreement dated 18.02.2013
02	Ex-B-2:-	Copy of final call letter with postal receipt dated 15.05.2014
03	Ex-B-3:-	Postal acknowledgement
04	Ex-B-4 & 5:-	Copies of pre-sale letters dated 27.04.2015 with postal receipts
05	Ex-B-6 & 7:-	Copies of pre-seizure intimation to Police dated 10.04.2014 and 27.04.2015 with postal receipts
06	Ex-B-8 & 9:-	Copies of valuation report and bill dated 30.04.2015
07	Ex-B-10:-	Copy of template for marking repo
08	Ex-B-11:-	Copy of notarized inventory of the vehicle
09	Ex-B-12:-	Original copy of seizure/surrender report
10	Ex-B-13:-	Original copy of statement of account for the period from 26.12.2012 to 23.04.2015
11	Ex-B-14 &  15:-	Copies of letters dated 09.10.2015 Head Post Master, Davangere by the OPs marked as Ex.B-14 and Ex.B-15
12	Ex-B-16:-	Copy of letters dated 17.11.2015 written by Sub Post Master, Bheemasa mudra to the Superintendent of Post, Chitradurga with regard to the disposal of RL No.RK4471281331IN and RK 4471282521IN
13	Ex-B-17:-	Copy of letter written by Postmaster Grad-III, Chitradurga dated 19.11.2015 to Post Master (HSG), Chitradurga with regard to the disposal of RL No.RK563748221IN and EK9351741171IN

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.