SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 35 of the Consumer Protection Act, 2019 (here-in-after called as the “Act”) alleging deficiency in service against the OP claiming compensation.
2. The case of the complainant, in short, is that he applied for sanction of a loan for purchase of a TATA ACE XL vehicle. After sanction of the financial assistance by the OP, the complainant purchased said vehicle on 19.3.2018 after paying the down payment of Rs.75,000/-. It was agreed between the parties that the complainant would repay the loan amount within 35 monthly instalments with effect from 15.4.2018 to 15.2.2021. The complainant cleared up the entire amount of repayment as per agreement and obtained receipts. It is further stated that as the last date for repayment was fixed to 15.2.2021, but the complainant taken time till 14.6.2021 for entire payment due to lockdown and shutdown situation during the pandemic period of Covid-19. But the OP has demanded excess two extra instalments i.e. Rs.27,600/- from the complainant otherwise the vehicle will be seized. However, the complainant had cleared all his outstanding dues on 19.1.2022, but still then the OP demanded the aforesaid amount and did not provide NDC. Finding no other alternative, the complainant served legal notice against the OP, but the OP did not pay any heed. For the above overt act of the OP, the complainant certainly sustained irreparable loss and mental agony. Hence, this case.
3. In the present case, the OP appeared and filed his version, but it was not accepted as the same was filed beyond the statutory period.
4. In the present case, the following points for determination are casted for proper adjudication of the case -
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. To substantiate his case, the complainant has relied on a catena of documents viz. Registration certificate particulars of the vehicle bearing No.OD-01W-9203 vide Annexure-1, Statement of account in respect of the Savings Account of the complainant bearing No.24811100004046 vide Annexure-2, Money receipts dated 24.4.2018, 18.6.2020, 30.6.2020, 27.7.2020, 28.7.2020, 28.8.2020, 27.11.2020, 15.12.2020, 13.1.2021, 10.2.2021, 10.3.2021, 9.4.2021, 14.5.2021,14.6.2021 marked as Annexure-3 series, Legal notice dated 13.1.2022, its postal receipt & track consignment vide Annexure-4 & Statement of Instalment vide Annexure-5.
6. Learned counsel for the complainant submitted that he has purchased TATA ACE XL vehicle bearing Regd. No.OD-01W-9203 in hire purchase agreement being financed by the OP and he had paid Rs.75,000/- as down payment and a sum of Rs.4,30,734/- agreed to be paid by the complainant to the OP in 35 monthly instalments from 15.4.2018 to 15.2.2021. It is further argued that the complainant has already been cleared up the entire amount of repayment, as agreed, in 35 instalments and obtained payment receipts and as the complainant did not make payment during the pandemic period of Covid-19, the OP demanded two extra instalments i.e. Rs.27,600/- which is illegal and for that NDC has not yet been issued.
7. On the other hand, learned counsel for the OP, citing the decisions of the Hon’ble National CDR Commission, New Delhi as well as the Hon’ble Apex Court, submitted that this Commission has no jurisdiction to sit upon the matter as the case of the complainant based on the accounts related dispute. No doubt the complainant has availed financial assistance for purchase of the alleged vehicle from the OP, but he failed to pay the instalments as agreed upon between the parties. Therefore, this case is not maintainable in the eye of law. In support of his submission, learned counsel for the OP placed reliance on the documents viz. The contract details vide Annexure-A, Statement of repayment vide Annexure-B, Receipt information vide Annexure-C, Statement of Accounts vide Annexure-D, Repayment schedule vide Annexure-E & Amortization table vide Annexure-F.
8. From the documentary evidence adduced from both the sides, it is seen that a sum of Rs.4,30,734/- was financed by the OP in favour of the complainant. In this connection, it is to be scrutinized as to whether the complainant has cleared up the dues of the OP or not. The Statement of Accounts vide Annexure-D, filed on behalf of the OP, shows that the complainant has paid Rs.4,26,561.85 paisa as on 31.3.2022 and a sum of Rs.15,885.14 paisa was balance on the complainant. On the other hand, from the DCB Savings Account vide Annexure-2, it appears that the OP has withdrawn 22 (as per EMI pattern of the OP) instalments i.e. an amount of Rs.2,70,600/- directly from the account of the complainant. That apart, the money receipts provided by the OP vide Annexure-3 series shows that the complainant had deposited (13 EMIs) Rs.1,47,534/- on different occasions till 14.6.2021. Thus, in total a sum of Rs.4,18,134/- has been paid by the complainant. As per the version of the complainant, he had to pay Rs.4,30,734/- in 35 instalments. Therefore, it is clear that the complainant has not cleared up the outstanding dues of the OP. Consequently, the claim of the OP is held to be justified.
9. Further, the complainant has claimed that due to pandemic period of Covid-19, the complainant could not able to ply his vehicle for which he became defaulter in payment of the instalments and prayed the OP for time some months for entire payment of the outstanding dues. The stand of the complainant cannot be ignored taking into consideration the guidelines issued by the RBI dated 5.5.2021 vide Notification No.RBI/2021-22/31, DOR.STR.REC.11/21.04.048/2021-22. Therefore, considering the guidelines of the RBI and the pandemic situation during the period of Covid-19, OP is instructed to take a lenient view in respect of the complainant for repayment of the outstanding dues preferably withholding the interest thereon as per Annexure-D, upon a discussion face to face and thereafter, NDC shall be issued in favour of the complainant.
10. In the above facts and circumstances of the case, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C) (Sunny & Others -v- Rajesh Tripathy) that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -v- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, Ops-Bank have the right to recover their dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financer. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the OP. In the facts and circumstances of the case, no order as to costs.
Pronounced in the open court of this Commission, this the 26th day of November, 2024 under my signature & seal of the Commission.
