Samaresh Kumar Mitra,  Member:

    The case of the complainant is that he being an unemployed person purchased a pick up Van of TATA Motors on 31.08.2010 paying a sum of Rs.45000/- by cash, Rs.12,290/- for insurance charge, fittings charges Rs.6500/- and registration charges of Rs.5000/- and the rest amount of Rs.305490/- was financed by Cholamandalam Investment  Finance Co. Ltd. It was settled that the financed amount to be paid off by the complainant @Rs.7877/- per monthly EMI and the tenure of the total EMI fixed for 47 months. For non issuance of TCL by the said financier in time you complainant get registration from RTA Hooghly in delay on/ after 08.10.2010 being regn. no. WB 15A 9520. That the complainant as per agreement with the said financier paid regularly the 11 EMIs but on demand as on date the said OP/ financier did not supply the  copy of agreement paper and statements of account for the EMI’s already paid. The OP Company charged unnecessarily late fee and high rate of interest which is but malpractice of the financier company which they made intentionally and to extort money from the complainant. That on 09.08.2011 at 6.00 p.m. when the vehicle coming back from Kolkata some antisocial elements escorted by one Debnath Nandan and Dilip Khara stopped the vehicle at  Bhadsreswar and seized it  with the application of muscleman and parked at UTSA PARKING, BIGATE, DELHI ROAD. Since then the vehicle is lying idle at the parking lot. The cause of action arose on 09.08.2011. Getting no alternative the complainant filed the instant complaint before this Forum for direction upon the OP to release the vehicle , compensation amounting to Rs.100000/- for mental agony, harassment including loss of income for illegal detention of vehicle in question, to appoint an advocate commissioner to inspect the present condition of the vehicle and litigation cost amounting to Rs.25000/-.

    The OP appeared by filing written version denied the allegations as leveled against him and averred that the complainant purchased a TATA ACE MINI LCV/HT vehicle by hypothecating the same with OP No.3 and took a loan of Rs.2,60,000/- to be paid in 47 equated monthly installments of Rs.7877/-. The date of disbursement of the aforesaid loan was 31.8.2010 and the commencement of the installments was 1.10.2010.  As per loan agreement stated above there is an arbitration clause by which all disputes and differences and claims between the parties have to be settled by reference to Arbitration. According to arbitration and conciliation Act, 1996 it is agreed between the parties hereto that the courts at Chennai alone shall have exclusive jurisdiction in respect of any matter claims or dispute . From the payment details it is clearly reflects that there is lacuna on the part of complainant to avoid the payment of EMIs. By referring the judgment of the Honorable National Commission in Prameswari Vs. The General Manager, V.S.T service station and others it is held that there is no legal impediment on the part of the financier to repossess the vehicle following the terms and conditions of the agreement entered into between the parties on failure by the complainant to clear the dues to the respondent/ financier.  The complainant was well aware of his dues and a final call letter was sent to him on 23/07/2011 to pay Rs.39855/- as on 20.7.2011. Getting no response from the end of the complainant the OP acted as per the terms and conditions of the agreement.

 The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

The OP filed evidence on affidavit which is nothing but replica of his written version.

Both sides filed written notes of argument which are taken into consideration for passing final order.

 Argument as advanced by the agents of the complainant & OP heard in full.

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant Subhendu Banerjee ‘Consumer’ of the opposite party?                    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

 4. Whether the complainant proved his case against the opposite party, as alleged       and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant   Subhendu Banerjee is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP finance company took loan as  finance for purchasing a TATA ACE MINI LCV/HT to engage the vehicle for his livelihood, so being a consumer he is entitled to get service from the OP .

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?   

  Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP to release the vehicle, compensation amounting to Rs.100,000/- for mental agony, harassment including loss of income for illegal detention of vehicle in question, to appoint an advocate commissioner to inspect the present condition of the vehicle and litigation cost amounting to Rs.25000/-ad valorem which is within Rs.20, 00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

     (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?   

 The case of the complainant is that he purchased a pick up Van of TATA Motors on 31.08.2010  being regn. No. WB 15A 9520 and took hypothecation loan of Rs.260000/- from the OP for which a sum Rs.7877/- was fixed for EMI for 47 months. That the complainant as per agreement with the said financier paid regularly the 11 EMIs but on demand as on date the said OP/ financier did not supply the  copy of agreement paper and statements of account for the EMI’s already paid. The OP Company charged unnecessarily late fee and high rate of interest which is but malpractice of the financier company which they made intentionally and to extort money from the complainant. That on 09.08.2011 at 6.00 p.m. when the vehicle coming back from Kolkata some antisocial elements escorted by one Debnath Nandan and Dilip Khara stopped the vehicle at  Bhadsreswar and seized it  with the application of muscleman and parked at UTSA PARKING, BIGATE, DELHI ROAD. Since then the vehicle is lying idle at the parking lot. Getting no alternative the complainant filed the instant complaint before this Forum for redressal. 

The OP by filing written version and brief notes of argument denied the allegations as leveled against him and averred that the complainant purchased a TATA ACE MINI LCV/HT vehicle by hypothecating the same with OP No.3 and took a loan of Rs.2,60,000/- to be paid in 47 equated monthly installments of Rs.7877/-. As per loan agreement stated above there is an arbitration clause by which all disputes and differences and claims between the parties have to be settled by reference to Arbitration. According to Arbitration and Conciliation Act, 1996 it is agreed between the parties hereto that the courts at Chennai alone shall have exclusive jurisdiction in respect of any matter claims or dispute. From the payment details it is clearly reflects that there is lacuna on the part of complainant to avoid the payment of EMIs. By referring the judgment of the Honorable National Commission in Prameswari Vs. The General Manager, V.S.T service station and others it is held that there is no legal impediment on the part of the financier to repossess the vehicle following the terms and conditions of the agreement entered into between the parties on failure by the complainant to clear the dues to the respondent/ financier.

The OP assailed that as the petitioner purchased the said vehicle for commercial purpose so he is not a consumer within the meaning of section 2(1) (d) of the C.P.Act, 1986. The vehicle in question is the subject matter of the dispute was hypothecated and remained as collateral for the purpose of the said loan and the same remained with the OP as a security towards its loan. The complainant had hypothecated the said vehicle with its additions, attachments and accessories by the way of first charge. The Loan-Cum-Hypothecation Agreement contains Arbitration Clause that “All disputes, differences and/or claim arising out of these presents or as to constructions, meaning or effect hereof or as to  the right and liabilities of the parties hereunder shall be settled by Arbitration to be held in Chennai  in accordance with the provisions of Arbitration & Conciliation Act,1996 or any statutory amendments thereof or any statute enacted for replacement thereof and shall be referred to the sole arbitrator of a person to be nominated/ appointed by OP. The award of the Arbitrator is final and binding upon the parties concerned and any proceeding to be initiated in any court of law in pursuance of this arbitration shall be instituted and held in Chennai only.

It appears from the documents of OP that the complainant was well aware of his dues as he received a final call letter dated 23/07/2011 in which it is stated that despite several opportunities given to him and they find from their records that his account in arrears wherein he has not taken any effort to repay the outstanding of Rs.39855/- as on 20.7.2011.Another PRE SALE LETTER dated 11.8.2011 send to this complainant speaks that inspite of the final notice and repeated follow ups the complainant has failed to pay the outstanding amount  and the said account is in arrears and he has taken no effort to regularize the same till date so the loan agreement shall stand terminated and the total amount payable on the date of  termination as Rs.30097/-as overdue installation value, additional finance charges Rs.10602/-,Principle outstanding Rs.215061/-, interest Rs.1558/-, agreement termination expenses Rs.11861/- and other expenses Rs.5000/-. By the said letter the OP called this complainant to pay the abovementioned amount by Demand Draft within 7 days from the receipt of the letter and take release of the vehicle in full satisfaction. 

After perusing the documents and hearing the arguments it is clear that despite receiving the final call letter of the customer, dated 20.7.2011 the complainant could not repay the total amount payable Rs.39855/- as a result the OP repossessed the impugned vehicle and parked at  UTSA PARKING, BIGATE, DELHI ROAD, Bhadreswar. And the incidence of seizure is admitted by the complainant in his petition. Subsequently the OP issued pre sale letter dated 11.08.2011 in which he specifically stated his demand in different heads but the complainant remained silent and failed to approach before the OP rather he filed the instant complaint before this Forum for redressal.

 We are in the Opinion that the complainant is a defaulter of premium and it is admitted in the complaint petition and he could not pay the amount demanded after the repossession but casting aside the demand prayed the recourse of this Forum. The complainant assailed that the OP repossessed the vehicle by muscleman but no complaint before the police has lodged by the complainant in relation to application of force during period of repossession. But there is no instance of application of force on the part of the OP in the case in hand except only in the version of the complainant. The OP acted in accordance with the terms and conditions of hypothecation agreement. So the complainant being a defaulter cannot go beyond the terms and condition in case of default of premiums. It is the maxim of the equity that ‘He who comes to Equity must come with clean hands’. The OP assailed the jurisdiction of this Forum to entertain this complaint petition, if there is any clause regarding the Arbitration in the hypothecation agreement, Supreme Court observed that even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment under the Consumer Protection Act, since the remedy provided under the Act is in addition of any other law for time being in force.

         Going by the foregoing discussion hence it is ordered that the complainant has failed to prove his case by adducing cogent document/evidence and therefore, the complainant fails on contest. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove his case beyond any doubt so he is not entitled to get any compensation as prayed for.

ORDER

 Hence, ordered that the complaint be and the same is dismissed on contest against the opposite parties, but without any cost.      

 Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.

          Dictated and Corrected by me. Member.