Complainant’s case, in a nutshell, is that both the complainants have entered into an agreement with the OPs who are representing Cholamandalam Investment and Finance Company Ltd. as Branch Manager and Manager respectively of Siliguri Office and that of Chennai for purchasing a Mahindra & Mahindra Bolero Pickup on finance by the OP No.1 for a sum of Rs.3,21,700/- including interest rate of 9% as per terms and conditions of the said agreement on repayment schedule prepared by OP No.1 on 28.01.2015.  The cost of the said vehicle was fixed as asset cost​ Rs.3,90,000/- and Rs.2,50,000/- was financed by the OP No.1.  It is further contended in the petition of complaint that as per referred agreement complainant no.1 being borrower had to pay a sum of Rs.3,21,000/- along with interest within a period of 35 months from 10.02.2015 to 10.12.2017.  The complainants paid Rs.2,73,980/- as per repayment schedule while OPs deducted all the installment amount from the bank account of complainant no.2 by bank Account No.11168731290 till 10.06.2017 but the OPs did not deduct the second and third installment amounting Rs.27,880/- from the said bank account of complainant no.2.  Then the complainants paid those second and third installment amount at the branch office of OP No.1 in cash but due to ups and down in the business complainants failed to pay 10^th installment amounting Rs.13,940/- while cheque got bounced dated 10.11.2015 and getting that information complainants paid that 10^th installment by way of cash at the branch office of OP No.1 without delay.  The OPs also did not deduct the 15^th installment amounting Rs.13,940/- as insufficient balance was there at the relevant time in that bank account of complainant no.2.  The complainants at that time raised and objection and not paid the 15^th installment amount till date and thereafter suddenly on 17.08.2016 OPs sent one letter to the complainant no.1 for payment of Rs.17,228/- at the branch office of OP No.1.  On 19.06.2017 the OPs by sending their mail forcefully took possession of the complainant’s above numbered vehicle from the road and thus complainant went to the branch office of OP No.1 and it is the contention of the petition of complaint that there exists no provision regarding recovery of financed vehicle from the borrower without any notice or court order and thus the OPs have illegally forcefully and unauthorizedly snatched away the above numbered vehicle from road without any prior intimation for which complainants have been suffering from financial loss @ Rs.4,000/- per day and the complainant no.1 has every right to get back the said vehicle as agreement but the both the OPs have not been handing over the said vehicle to the complainants.  Complainants served legal notice upon both the OPs through their advocate.  Complainants are also suffering from mental pain, agony and harassment.  The cause of action of this case was firstly arose on 10.04.2016 and thereafter on different dates and thus the each and every dates of cause of action indicate that this cause of action is continuing one and ultimately the complainants have prayed for a direction upon the OPs to handover the said vehicle to the complainants on payment of due amount of Rs.47,720/- as per agreement as well as for payment by the OPs Rs.4,000/- per day as the complainants have been suffering financial loss.  For mental pain, agony and continuous harassment Rs.30,000/- has been demanded from the OPs and Rs.20,000/- in addition to that to the complainants to be paid by the OPs on account of punitive damages as well as a sum of Rs.50,000/- on account of loss of asset values to the complainants and a further sum of Rs.20,000/- as cost of litigation.     

On the other hand, the case of the OPs as depicted in the written version says that the complainants had applied for the loan to purchase a commercial vehicle i.e., a light goods vehicle (Truck) bearing Registration No.WB-73B- 9291 product model pick up BS-III and to run the same for business/commercial purpose only and not for any private use and hence could not repay the loan as per the bilateral agreement entered into between the parties.  It is contended further that for this purpose the complainants do not fall within the definition of the word ‘consumer’.  The averments made in the petition of complaint are almost all denied by the OPs.  The OPs further submitted that while the 15^th installment amount was also not cleared then the OP No.1 requested the complainants to pay the same amount by cash.  But complainants ignored such request and appeal and were firmly rigid and thereby declined to pay the bona fide claim.  The OPs also requested the complainants several times to produce the statement of account of their bank to the OPs for perusal but complainants never produced the same and thereafter finding no other alternative the OPs according to the right conferred by the loan agreement upon them sent a loan termination notice dated 17.08.2016 to the complainant and requested to pay the EMIs outstanding along with their charges being Rs.17,228/- payable as on 17.08.2016 and further requested the complainant to make payment of further dues promptly to avoid penal and other charges failing which the OPs will take the recourse to repossess the vehicle/asset financed under the agreement.  It is in the written version that complainants not only failed to make payment but also deliberately ignore to reply the loan termination notice/letter dated17.08.2016.  Accordingly, as per the rights conferred to the OPs by virtue of bilateral agreement and as per law primarily the OPs intimated the local Police Station vide letter dated 09.06.2017 that such vehicle which is under hypothecation is required to be repossessed after taking it into custody and thus by following due process of law in the way of intimating local Police Station taking signature and assent of the driver, custodian of the vehicle at that moment in the inventory and by providing the copy of the said to the custodian and by further informing the necessary parties vide letter dated 20.06.2017 of the bilateral agreement i.e., the complainants to clear the bona fide outstanding amount along with other necessary charges and thereupon release the vehicle within the stipulated period of seven days but complainants failed and neglected to honour such request and in this context OPs have denied the deployment of musclemen and force from their part.  OPs submitted further that there is an outstanding of Rs.23,556/- only as on 07.11.2017 payable by the complainants to the OPs and ultimately have prayed for dismissal of the complaint. 

It is to be noted here that on 18.01.2018 one formal amendment was done over the petition of complaint on the basis of the application of the complainants in this case. 

The complainants filed affidavit-in-chief which is completely on the basis of the petition of complaint and a list of documents have been filed by the complainants as document No.1 to document No.16.

The OPs also filed examination-in-chief and it is stated therein that the complainants deliberately failed and neglected to repay the legitimate loan claim with an intention only to deceive and misappropriate the public money and had emphasized that complainant had purchased a commercial vehicle for the purpose of business and thus cannot be categorized as ‘consumer’ as per Consumer Protection Act, 1986.  The OPs filed some documents including vehicle Finance loan agreement, letters etc.   

It is pertinent to note here that the complainants as stated earlier on the basis of the amendment furnished amended plaint before this Forum on 11.04.2018 and ultimately written notes on arguments have been filed by the parties to this case. 

The complainants as per mention of written notes on argument furnished a copy of Judgement dated 12.08.2015 of Hon’ble National Consumer Disputes Redressal Commission as decided in between Satbir Singh Vs H.D.F.C. Bank Ltd. & 4 others and on the other hand the OPs have also furnished some decisions of Hon’ble Supreme Court of India, Hon’ble National Consumer Disputes Redressal Commission and decisions of Hon’ble State Consumer Disputes Redressal Commission of different states during the course of oral argument of this case.

Now, on the basis of the pleadings of the parties some points are taken up for determination and adjudication of this case which are as follows :-                           

Points for determination

1. Is the case maintainable in its present form and nature?

2)       Has the complainant any cause of action to file this case?

3)       Are the complainants ‘consumers’ as per definition and meaning of the ‘term’ in accordance with C.P. Act, 1986?

4)       Is there any deficiency in service upon the complainants from the part of the OPs in this case?

5)       Are the complainants entitled to get the relief as prayed for?

Decision with reasons

Point Nos.2, 3 & 4

These three points are taken up together at first for consideration as those are interrelated and moreover for the sake of convenience of discussion for coming to a decision.

This is a case where it is found that admittedly, complainants took a loan of Rs.2,50,000/- while complainant no.1 is borrower and co-borrower is complainant no.2 after filling up application form being No.2886556 and the date of agreement is 21^st day of January, 2015.  The OPs filed that filled up application form along with loan agreement – vehicle finance in photocopies along with other documents which include account statement to that effect of loan.  The Clause 11 of that agreement says about repossession, termination and company’s other rights and here company means the represented OPs of this case.  Then petition of complaint admits that as per contractual terms and conditions of the said agreement borrower, complainant no.1 had to pay a sum of Rs.3,21,700/- only including interest @ 9 % flat with 35 months from 10.02.2015 to 10.12.2017 which has been mentioned in the repayment schedule.  It is perused that loan amount were being deducted from the account of complainant no.2 and it is found from the case of the complainants themselves that second and third installments were not deducted by the OPs about which in the next paragraph of the petition of complaint, it is admitted that sufficient balance was not there in the said account of complainant no.2 so, those were not deducted but complainants paid that second and third installment amount at the branch office of OP no.1 by way of cash.  It is also admitted that complainants failed to pay 10^th installment amount of Rs.13,940/- as because the cheque issued of that amount got bounced and this amount was also subsequently deposited by the complainants at the branch office of OP No.1 by cash on 05.12.2015.  In the same manner OPs did not deduct the 15^th installment amounting Rs.13,940/- from the above mentioned bank account of complainant no.2 and on that occasion complainants raised objection and not paid the 15^th installment till the date of filing of this case and in that context it appears from the letter issued from the OPs that they informed complainant no.1 by that letter dated 17.08.2016 that complainants had been committing default or delay in payment of monthly installments which is a breach of the terms of the loan agreement and thereby OPs requested to pay that EMI outstanding along with overdue charges being Rs.17,228/- payable as on 17.08.2016 and to make payment of the future dues failing which they would take recourse to their rights under the agreement including repossession of the vehicle financed under the same.  In this context, we have perused the evidence in writing of both the parties including the documentary evidences as produced by them as well as other relevant materials on case record. 

From the very statements of the petition of complaint it is evident that the complainants have violated after taking loan as per agreement entered into with the OPs the terms and conditions of the same in respect of payment of the monthly installments and it has become no doubt harassing and vexatious to the OPs – vehicle finance company.  It should be borne in mind there is a maxim in equity that he who seeks equity must do equity or that he who comes to equity must come with clean hands.  This case is to be guided certainly with the provisions of the Consumer Protection Act, 1986 but everywhere amidst that law principle of equity should not be discarded particularly when with a good relation at starting in respect of welfare of someone some loan is being sanctioned and disbursed on good faith as per terms and conditions to those persons as are the complainants here.  In this context, we have looked into the referred case of the complainants in between Satbir Singh Vs H.D.F.C. Bank Ltd. & 4 others as decided by our Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 12.08.2015 but the fact of repossession of the vehicle in that case is not similar to this case on the point of repossession of the vehicle where the OPs informed the local Police Station and gave a time of seven days to the complainants in writing.  The matter of default in payment prior to that in this case had been going on for which OPs had sent letter to the complainants on 17.08.2016 which had been admitted by the complainants.  The second vital question in respect of this case which has been raised by the OPs side that the vehicle in question which is Bolero Pick up and which was being purchased on finance by the OPs was being run by the complainants in commercial purpose.  On this backdrop during consideration we are not unmindful at all about the provision of Section 2(1)(d) of the Consumer Protection Act, 1986, particularly to its explanation provision which runs as follows :-

“For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment”.

On this point the referred case of the OPs here in this case which has been reported in 1995 AIR 1428 in between Laxmi

Engineering Works Vs P.S.G. Industrial Institute dated 04.04.1995 as decided by our Hon’ble Supreme Court of India and the observation as enshrined therein is noteworthy to mention for obtaining guidelines of this instant case.  It is observed that definition of the expression “consumer” in clause (d) of Section 2 of the Consumer Protection Act, 1986, excludes from its purview “a person who obtains such goods for resale or for any commercial purpose”.  Subsequently, it has been enshrined further during observation that “a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose.  The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition o expression “consumer”. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”.  In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer.  In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act.  The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case”.

We have gone through also another referred case as reported in I (1991) CPJ 499 (NC) wherein it has been observed by Hon’ble National Commission, New Delhi that the expression used in the Act is “commercial Purpose”.  “Purpose” is the noun qualified by the adjective “Commercial”.  The character of any economic activity whose purpose is to make profit or to obtain financial return will be commercial irrespective of the skill of the activity.  The reference of the case of Laxmi Engineering Works Vs P.S.G. Industrial Institute as decided by Hon’ble Supreme Court of India has been made and mentioned in a case of Hon’ble National Commission, New Delhi in between Crompton Greaves Ltd. and Another Vs Daimler Chrysler India Pvt. Ltd. as referred in this case as decided on 08.07.2016 it has been enshrined “as observed by the Hon’ble Supreme Court in Laxmi Engineering Works Vs P.S.G. Industrial Institute it is not the value of the goods but the purpose for which the goods are brought or put to use, which is relevant to decide whether the goods were obtained for a commercial purpose or not”. 

In view of the above references we have looked into the facts and circumstances of this case that the complainants in petition of complaint in paragraph No.29 b) categorically sought for direction upon the OPs to pay daily loss of Rs.4,000/- only per day till the disposal of this case along with lawful interest rate and from this version we are to judge the meaning of commercial purpose which has been mentioned in the explanation clause of Section 2(1)(d) of the Consumer Protection Act, 1986 and here we are again guided by the referred case and observation of the Hon’ble Supreme Court of India where it has been observed by our Hon’ble Apex Court of India that the explanation reduces the question, what is a ‘commercial purpose’ to a question of fact to be decided in the facts of each case and thus this case on the question of commercial purpose has been clearly evident on the point of admission as mentioned earlier in the petition of complaint by the complainants that the complainants took the loan from the OPs as financer for purchase of the vehicle in question for use of the same exclusively for commercial purpose and not for mere livelihood by means of self employment and if that be the so then the complainants as per Section 2 (1)(d) of the Consumer Protection Act, 1986 should not be termed as ‘consumer’ in this case.  Accordingly, the complainants are not the ‘consumers’ as per said relevant provision of law as envisaged in the Consumer Protection Act, 1986 and as a logical corollary the complainants being debarred from the term ‘consumers’ the Point No.3 as well as two other points which are Point Nos.2 & 4 are disposed of against the complainants.

Point Nos.1 & 5

In view of the above discussion as well as observation of this Forum, while Point No.3 has been decided earlier against the complainants and it has been held that the complainants are not the ‘consumers’ then we are of the view that this case is not maintainable and the complainants are not entitled to get any relief as prayed for. 

All the above points are thus disposed against the complainants. 

As a result, the instant case fails. 

Proper fees paid.

Hence, it is,

O R D E R E D,

that the Consumer Case No.65/S/2017 is dismissed on contest against the OPs without cost. 

Let a copy of this order be handed over to each of the parties free of cost at once.