SRI P.K.PANDA, HON’BLE PRESIDENT …                 The substance of case is that, the complainant availed loan a sum of  Rs.6,25,000/- from Ops. finance company for purchase a TATA SFC 407 vehicle and finance charges of Rs.2,11,600/- on 13.05.2016 and executed one agreement with the Ops in relating to aforesaid loan. After availed the loan the complainant was regularly depositing the loan amount till Sept’2019 before the OP_1,but on Oct’2019 one of the authorized agent of Ops came to the village of complainant and without prior information and discussion he snatched the said hypothecated vehicle from the possession of the complainant, though the complainant asked to the agent the reason of such action but the agent said ,the vehicle has been seized on the direction of the Manager, of said finance company, Jeypore. The complainant also requested him not to seize his vehicle and allow him to discuss with the OP-1,but the said agent did not consider the request of the complainant at the time of seized the vehicle was in running condition. There after the complainant visited the office of OP-1 with the installment amount to deposit  of loan amount to release he seized vehicle, but nobody receive the same. Due to such type of activities and behavior of OP-1,the complainant helpless and nervously approached his counsel and requested for legal action against the Ops. On request the counsel issued a legal notice on dtd.17.06.2022 by Regd. Post., though the OP-1 received the same, but did not respond. Due to such type of activities the complainant is suffering from hypertension and mental agony and he fell ill health and for his treatment, he spent for about more than of Rs.2,00,000/-.Hence, this complaint. So, he prayed to direct to pay Rs.5,00,000/- towards mental agony suffered by the complainant and Rs.2,00,000/- for his medical treatment expenses and also to pay of Rs.10,00,000/- to spent for treatment in future of the complainant and Rs.20,000/- towards litigation expenditure due to illegal acts of Ops in the interest of justice.

2.                     The counsel for OP.s has filed his counter to contended simply noted here that, the complainant is wholly misconceived, groundless, frivolous, vexatious in eyes of law and hs been filed without any justified reasons/cause against the Ops and just made to harass, defame and extort sum of money from the Ops, hence the complaint is liable to be dismissed.

3.                     The complainant has filed copy of some relevant papers along with money receipts in support of his claims. The counsel for OP.s filed only counter copy and contends the case without filing any affidavit and relevant documents. Case heard from both the parties and perused the record.

4.                     It reveals from the case that, the complainant being un educated farmer for his livelihood hence procured the so called vehicle with a loan of Rs.6,25,000/- agreed to pay interest of Rs.2,11,600/- to be deposited  as EMIs. The contention of complainant is that he has already deposited EMI amount upto Sept’2019 without fail. But the OP.s forcibly repossessed the vehicle illegally through their hired musclemen from his house without prior information or notice. He further submits that the OP.s repossess of vehicle and his  procedures is illegal and arbitrary. Every part and paras of the counter is also the same contents, no specific point of contents against the petition filed by the complainant.

 5.                    We have carefully gone through the complaint, the counter by OP.s and submission of parties including documents submitted by them and restricted our adjudication to the following points-

           A.                   Is the complainant a consumer against the OP.s ?

           B.                   Is there any deficiency in service on the part of the OP.s in regard to the present transaction?

           C.                   Is there any remedy available to the parties in the lis ?

6.                         Primarily, the agreement executed between parties to the lies in nature of loan agreement, with hypothecation of vehicle in question. The complainant submits that, he being unemployed, un educated for his self employment and to earn livelihood, he had bought the vehicle to expand his earnings. Hence he approached the OP.1 and executed an agreement with voluminous agreement papers to which the complainant hardly had any time to go through but signed all blank within a short period. The OP.s neither have availed him the copy of agreement he signed or the papers.

           The alleged vehicle against which the loan was advanced is registered in his name. The learned counsel for the complainant submitted that the OP.s is a NBFC Company, selling loans for a valuable consideration i.e. interest.Sec.2(42) of the CPA defines ‘service’ means service of any description which is made available to potential uses and includes, but not limited to the provisions of facilities in connection with banking, financing, insurance, transport, processing… . Hence, the OP.s are NBFC Company availing of financing services to their customers and the present complainant availing that service for a valuable consideration i.e. interest, hence the complainant is a consumer under the CPA.

7.                     The learned counsel for the complainant further submits that, the OP is an NBFC company which sells loans to its perspective customers. It has, apart from opening the branches as opened in various parts of Odisha, especially engaged agent for this are of  Nabarangpur District, which is under this jurisdiction.

8.                     Pursuing counter and complaint filed   by the OP.s and complainant, along with their submissions, this Commission  is brushed off  of any doubts to opine that the cause of action, arose at Nabarangpur District, and agreements are all executed at the O/O the  OP.1, the hypothecated vehicle also registered with the R.T.A. Nabarangpur, hence all the facts consolidated throws the burden of jurisdiction under this Commission to adjudicate the complaint of its merit, and this Commission feels to repudiate from the burden would inflict a great injustice unto the complainant.

9.                     The OP.s representing the company is an NBFC company and all NBFC companies so registered, are guided by the rules and guidelines prescribe by the Reserve Bank of India, and such guidelines to adequate the credit system of the country.

The term deficiency defined under Consumer Protection Act’2019, which reads as followed. Sec.2(11)‘deficiency means any fault ‘in perfect shortcomings or inadequacy in quality, nature, and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes- (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer’.

10.                   Here in the section the word ‘in pursuance of a contract leaves no ambiguity to the question that any service, the parties bound to perform under a contract, may be that contract private or public, implicit or explicit, but arising out of a contract’, which the plea of the learned counsel for the OPs that the jurisdiction of the consumer court in the matter of deficiency in service on the part of the Ops is not ousted in view of the existence of a private contract/agreement.

11.                   A minutely adjudication of the provisions of the agreement of contract between the parties, as produced by the counsel for the Ops  can’t be called in consonance in the provisions of present laws in force as the public policy or any of the R.B.I. guidelines.

12.                   Hence, as discussed above, at the cost of repetition, we hold of the view that the agreement of whatsoever kind is executed between the parties is devoid of any legal merits of enforcement by any court of law, hence void, and as thus the opposite parties cannot claim the conditions stipulated there in bind the Complainant and as such the relation of borrower and creditor, repudiating the jurisdiction of the Commission, as the claim of the counsel of the O.P.s is uncalled for.

13.                   The counsel of OP.s have failed to adduce affidavits of OP.s, any evidences or submissions to defense the said allegations.

14.                   Hence, this Commission, on perusal of all the evidences, of the view that, the OP.s has acted, arbitrarily, capriciously, malfeasantly to the prejudice of the interest and rights of the complainant, and there is serious deficiency in services committed by the OP.s for which they are liable to be impounded with heavy compensation. However, they have advanced a loan of Rs.6,25,000/- with interest to which the complainant admits, and have recovered EMIs upto Sept’2019 and repossessed the vehicle with hired musclemen without prior notice and auctioned the same vehicle while the complainant was losses his down payment of Rs.3,40,000/- along with deposited EMI amount from May’2016 to Sept’2019  approximate to Rs.7,20,000/- and he undergone stress, hence is illegal, unlawful, highhanded with relied the holdings of Apex Court ‘ that since hypothecation is a “security interest” on the vehicle, the use of the process of the SARFAESI Act is mandatory, and any repossession action not adhering to the process of that Act is illegal’. The Apex court’s rulings above triggered the codes for recovery agencies by the RBI. Considering the rise in the number of customer grievances in relation to the recovery practices of the lenders, the RBI issued a notification on August 12, 2022 on Outsourcing of Financial Services – Responsibilities of regulated entities employing Recovery Agents which provided a consolidated list of the various existing guidelines/directions issued by the regulator. Particularly, it was conveyed by the regulator that the lenders should strictly ensure that they or their agents do not resort to intimidation or harassment of any kind, either verbal or physical, against any person in their debt collection effort.

                                    As thus the complaint is allowed against the OP.s.

O RDER

i.                     The OP.s Supra here by directed to pay Rs.15,00,000/- (Rupees Fifteen Lakh) as compensation towards  losses  down payment of the alleged vehicle  of Rs.3,40,000/- along with deposited EMIs amount from May’2016 to Sept’2019  approximate to Rs.7,20,000/- with harassment, ,mental agony, other financial loss and Rs.20,000/-(Twenty Thousands) as cost of litigation to the complainant.

ii.                     Besides, the OP.s are further directed to issue the NOC infavour of complainant ensuring proper CIBIL with standard manner to the complainant.

iii.                    All the above directions shall be complied with in 30 days of receipt of this order, failing which, the total amount shall bear 12% interest per annum till its realization. Any deviation of the above direction, it will be attracted on non complies of the order u/s 71 & 72 of  C.P.Act,2019 after lapse of the period, without prejudice.

( Pronounced in the day on 19th day of Jan' 2024).

                                       Sd/-                                           Sd/-

                                  MEMBER                             PRESIDENT