JUDGMENT

Shri A.K.Patra,Paresident

1. This complaint is presented by the complainant named above inter alia alleging deficiency in service and unfair trade practice on the part of  Ops for their unlawful & unilateral  rescheduled of the period of repayment of loan by enhancing the number of EMIs from 40 to 42 EMIs.
2. The Complainant has prayed for the following relief(s):- (i) to hold that, Opp. Parties are liable for unfair trade practice for their unlawful & unilateral rescheduling/enhancing the period of EMI from 40 to 42 months and further:- (ii)  to hold  the same as not binding on complainant as he has already paid 39 numbers of EMIs & ready to pay the EMI up to 40 months only. (ii)  for an order directing  the Opp. Parties not to claim extra two installments as it scheduled  against the complainant and (iv)  for an award of compensation of Rs.3,00,000/- towards monetary loss and mental agony along with  litigation cost as this Commission may deem fit and proper.
3. Heard. Perused the materials available on record and given our thoughtful consideration upon the submission of the Parties & arguments of their learned counsels.
4. Brief fact of the complaint is that, the complainant has purchased a Mahindra tractor 415 BP, Large tyre OIB PECM South Special being financed by Mahindra Financial Service Limited, Bolangir /OP-1, now its Branch Office at Bhawanipatna/OP- 2. The complainant has paid Rs.2,20,000/- towards the part payment of the cost price of the said vehicle and the rest amount of Rs.3,80,000/- was financed by the OP/ Mahindra Financial Service Ltd. vide Loan Contract No.5918700 dt.28.05.2019 repayable in 40 numbers of monthly EMIs @ Rs.12700/- on 15^th of each month commencing from 15th January 2019 as per repayment schedule vide letter No.6.1.2019 annexed as Annexure -1. It is submitted that, the complainant has already paid 39 EMIs , repayment summery obtained from the website of the OP dt.18.4.2022 is annexed as Annexure -2 in the complaint petition. It is further submitted that, the complainant is not at all a defaulter , however the OPs have increased two number of EMIs unilaterally for the month of May & June 2022 violating the terms of said loan agreement which is protested by the complainant but the Ops are remaining silent rather arbitrarily threatening the complainant to seized  the vehicle & to repossess it  on default of repayment of said extra two EMIs on the part of the complainant which shows deficient service and unfair trade practice of the Ops for which the complainant suffered financial burden and mental agony. Hence, this complaint.  
5. To substantiate his claim, the complainant has filed the following documents:- (i) Xerox copy of  letter dt.06.01.2019 issued by OP No.1 to the complainant,(ii) Xerox copy of Registration Certificate  particulars vide No.OD03 P 4289 dt.04.06.2019,(iii) xerox copy of repayment summery dt.18.4.2022,(iv) Xerox copy of  repayment summery dt.22.01.2022,(v) Xerox copy of Aadhar card. The complainant averment is supported by an affidavit of the complainant.
6. On being notice the Ops have filed their written version and preliminarily challenged the maintainability of this complaint by submitting that, the complainant is not a consumer as defined under C.P.Act,2019 and that,  the vehicle in question is purchased for commercial purpose being financed by the Ops and that , it is not the case of the complainant that, he is using the vehicle solely to earn his livelihood by means of self employment and that , there is no cause of action arises as the vehicle is still in the custody of the borrower/complainant. It is further submitted that, the Ops have never attempt to repossess the said financed vehicle which is hypothecated with the ops the assuring the repayment of loan by the complainant . It is further contended that, as per clause 15 & 16 of the loan agreement any disputed between the parties are to be settled by way of arbitration as per the provision of arbitration and conciliation act 1996 and further stated that, ,clause 27 of said agreement defines the jurisdiction of for deciding the dispute between the parties and as per agreement, any dispute between the parties shall be exclusively triable in the Courts at Mumbai jurisdiction.
7. However, the Ops have not disputed the fact of financing the vehicle to the complainant. It is admitted that, the Ops have disbursed loan amount of Rs.3,80,000/- and as per agreement the value (including interest) to be repaid by the complainant is Rs.5,08,000/- in 42 periodical installment of Rs.12,700/- each per month starting from 15.1.2019 and ending on 15.04.2022. The said installments were to be paid within 15^th  days of every month. It is further contended that, during pandemic Covid- 19 period and as per the RBI as well as Government of India direction, financial moratorium facility has been applied in this case for six months i.e. from March 2020 to August 2020 but despite allowing of the moratorium period, the complainant deliberately paid Rs.12,000/-on 31.3.2020, Rs.26,000/- on 30.06.2020 and Rs.25,400/- on 31.03.2020 which in total amount to Rs.52,600/- and hence the Ops have adjusted the same against four EMIs (i.e. 12,700/- x 4 = Rs.50,800/- in total) towards principal repayment  received  during moratorium period only without charging any interest upon it and rest amount of  Rs.1,800/- were  carried forward . Thus only two EMIs were left  to be repaid which accrued during moratorium of said six months, in result of  which revised number of EMIs become 42 against the earlier agreed 40 numbers of EMIs  thus, the  tenure of loan account was extended from 15.4.2020 to 15.6.20222 but without understanding & having any meaningful discussion, the complainant has deliberately stopped repayment from the month of April 2022 alleging that, he has repaid all the EMIs towards complete realization of his loan account as a  result  as on date he became  a defaulter of 3 EMIs of Rs 47,984/- towards EMIs outstanding , Rs.18,318/- towards AFC outstanding and Rs.3,680/- towards cheque bounced charge i.e. in total Rs.69,982/- is to be paid by the complainant. With this submission the Ops urged that, there is no deficiency in service or unfair trade practice can be attributed to any answering Ops and that, they are in no way liable to give any kind of compensation to the complainant as sought for or in any other form.  
8. To substantiate their claim the Ops have filed the copy of the principal interest break up before moratorium and repayment schedule after moratorium   in loan A/c No.5918700 and the copy of the statement of the loan account there annexed as annexure A  and B series respectively with their written version . The averment of the written version is supported by an affidavit of  one Ashok Kumar Panda, State Legal Manager, Defense, Mahindra & Mahindra finance service Bhubaneswar.
9. Before discussing other facts and issues we feel it proper to decide the case on the point of maintainability of this complaint.
10. Law is well settled that, where a person purchased goods or hire services “with a view to using such goods or services as it may be for carrying on any activity on a large scale manufacturing or processing activity for earning of huge profit, he will not be a consumer under Consumer Protection Act “.
11. Here in this case, admittedly the complainant has purchased the vehicle being financed by the Ops and got it registered before the R.T.O Bolangir vide Regd.No ODO3P4269 ,Vehicle Class –Tractor (COMMERCIAL) copy of which is placed on record does not ipso facto   construe that, the complainant has avail the financial service of the Ops for commercial purpose. The Ops has failed to adduced any cogent evidence to hold that, the complainant has hired the financial service i.e. loan not for earning of his livelihood by way of self-employed but for a large scale manufacturing or processing unit carrying on for huge profit. Accordingly, we are unable to conclude that, the complainant has hired the financial service for “commercial purpose” only rather, the complainant is entitle to claim against the Ops in this case as a “consumer”. Reliance may be placed on the decision of Hon’ble Apex Court in Laxmi Engineering Works Vrs. P.S.G Industrial Institute ,(1995) 3SCC 583 & Paramount Digital Color Lab VRs. Agta India Pvt. Ltd.,(2018) 14 SCC 81.
12. The answering Ops have admitted the fact that Ops have extended their financial service by way of disbursing loan to the complainant and that they have their branch office at Bhawanipatna, Dist-Kalahandi as such we are of our view that, this complaint is well within the territorial jurisdiction of this DCDRC, Kalahandi.
13. The Ops further submitted that, due to existence of the Arbitration & Jurisdiction clauses there in the loan agreement this consumer complaint is not maintainable. In this regard we may relied on the Hon’ble Supreme Court passed in Emaar MGF Land Ltd. Vrs. Aftab Singh-I, (2015) CPJ 5 (SC) where it was laid down that, an arbitration clauses on the agreement does not bar the jurisdiction of the Consumer Commission  to entertain complaint.
14. The Consumer Protection Act 1986 as well as new Consumer Protection Act 2019 specifically fixed the territorial jurisdiction to entertain the consumer complaint for settlement as such any agreement fixing jurisdiction to adjudicate dispute between the parties contrary to the statutory provision is not acceptable. Hence, the objection raised by the Ops that, the clauses of arbitration and jurisdiction there in the loan agreement bars this Commission from entertaining the complaint is not admissible hence ,rejected.
15. The complainant has prayed to hold that, the OPs are liable for unfair trade practice in unlawfully &  unilaterally  rescheduling by enhancing  the period of payment of EMI from 40 number to 42 number which mean that the complainant has aggrieved on the enhancement of 2(two) nos. of EMIs only which are reflected in the  Annexure- A-1 & A-2 respectively  placed in the record  by the Ops along with their written version i.e. revised payment schedule vide EMI serial No.41 due date 15^th May 2022 for an amount of for Rs.17,649, and EMI serial No.42, due date 15^th June 2022 for an amount of for Rs.17,649, and there is no dispute that the complainant has already paid the 39^th number of EMI . As on date the complainant has not paid the last one EMI and the alleged unilaterally  enlargement of 2 (two) EMI accordingly the Ops claimed repayment of  Rs 47,984/- towards EMIs outstanding , Rs.18,318/- towards AFC outstanding and Rs.3,680/- towards cheque bounced charge i.e. in total Rs.69,982/- by the complainant is the sole dispute in this complaint.
16. That, the total disputed amount is Rs.69,982/- only  and there is no dispute over the repayment of entire agreed 39 number of EMI out of 40 EMIs. Further the complainant has prayed for a compensation of Rs.3,00,000/- only towards mental harassment & agony which include cost of this  litigation . As such we are of our view that, claims in the complaint is within the pecuniary Jurisdiction of this DCDRC ,Kalahandi and there is sufficient cause to bring this complaint claiming deficiency of service and unfair trade practice on the part of the Ops.
17. The complainant on dt. 22.01.2022 came  to know the facts with respect to unilateral & unlawful reschedule of repayment structure i.e. enhancement of period & number of EMI from 40 to 42 ignoring the agreed number of 40 EMI and saddled  financial burden & mental agony caused the complainant  to present this complaint on 30.04.2022 is found to be in time as prescribed under C. P. Act 2019.
18. It is the submitted by   the answering Ops that,  during pandemic Covid- 19 period and as per the RBI as well as Government of India direction, financial moratorium facility has been applied in this case for six months i.e. from March 2020 to August 2020 but despite allowing of the moratorium period, the complainant deliberately paid Rs.12,000/-on 31.3.2020, Rs.26,000/- on 30.06.2020 and Rs.25,400/- on 31.03.2020 which in total amount to Rs.52,600/- and for which  the Ops have adjusted the same against four EMIs (i.e. 12,700/- x 4 = Rs.50,800/- in total) towards principal repayment  received  during moratorium period only without charging any interest upon it and rest amount of  Rs.1,800/- were  carried forward . The  two EMIs were left  to be repaid which accrued during moratorium of said six months, in result of  which revised number of EMIs become 42 against the earlier agreed 40 numbers of EMIs , accordingly  the  tenure of loan account was extended from 15.4.2020 to 15.6.20222 but without understanding & having any meaningful discussion, the complainant has deliberately stopped repayment from the month of April 2022 alleging that, he has repaid all the EMIs towards complete realization of his loan account as a  result  as on date he became  a defaulter of 3 EMIs of Rs 47,984/- towards EMIs outstanding , Rs.18,318/- towards AFC outstanding and Rs.3,680/- towards cheque bounced charge i.e. in total Rs.69,982/- is to be paid by the complainant.
19. The  OP /Company increased the tenure of the loan of the complainant form 40 months to 42 months, the revised repayment schedule is not disputed . The Ops have failed to prove that, the complainant has ever been intimated or consulted to make him understanding or have any meaningful discussion, prior to the changing of loan repayment structure by way of enhancing the arrear and number of EMI 40 to 42 .Nothing material available on record to hold that subsequent changes in repayment scheduled has been acknowledged by the complainant.
20. There is no iota of evidence available on record that, to hold that, any opportunity of being aware in any manner regarding enhancement of number of EMI & period of repayment has been  given to the complainant. The complainant/borrower is completely at the mercy of the bank O.Ps /finance company who is resourceful party on protection of their interest.
21. Here in this case, the number of EMI payable is unilaterally increased by the bank is proved as such we are of the opinion that, there clear deficiency in service & Unfair Trade Practice on the part of the Ops/ finance company as such there is sufficient cause of action to bring this complaint before this Forum /commission .
22. Having given our thoughtful consideration to the various  pleas raised by the learner counsel for the parties and keeping in view the settle principle of law  there is not only an act of deficiency in  service but also it amounts to unfair trade practice on the part of Ops/ Mahindra Financial Services Limited no doubt caused financial hardship & mental harassment to the complainant as such the Ops are jointly & personally   liable to compensate the complainant but at the same time the complainant may not be allowed for unlawful enrichment  as such he is liable to pay the outstanding loan amount i.e the  default  EMIs outstanding Rs 47,984/- and on received of such amount the Ops are to be restrained themselves from demanding further payment of said outstanding amount of Rs.18,318/- towards AFC & Rs.3,680/- towards cheque bounced charge as claimed to be paid by the complainant .
23. Hence, in the light of above said discussion and settled principle of law this complaint is allowed in part against the OPs on contest with following orders.

                                                                                             Order

The complainant is directed to pay the outstanding loan amount i.e.  default  EMIs outstanding of Rs 47,984/- within one month of receiving of this order and after received of such amount ,the Ops be restrained themselves from demanding further repayment of outstanding amount i.e.  Rs.18,318/- towards AFC & Rs.3,680/- towards cheque bounced charge as claimed from the complainant and to issue “no dues certificate” with respect to alleged loan to the complainant without further harassment. No order as to cost & compensation. Parties to bear their own cost .The above order is to be complied within four week from the date of receiving of this order failing which the  default party is liable to pay compensation @ Rs.5,00/- per day to the other party till  compliance of the order and the same shall be reimburse from the CEO of the said Finance company or form the complainant as may be .Pending application if any is disposed of in view of the aforesaid order.

Dictated and corrected by me.

   Sd/-           

President

I   agree.

  Sd/-                                                     Sd/-

Member                                            President

Pronounced in open Commission today on this 27th day of April 2023 under the seal and signature of this Commission.

The judgment be uploaded in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission. Order accordingly.