The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Concerned Authority, Mahindra & Mahindra Financial Services Ltd., Balasore and O.P No.2 is the Concerned Authority, Mahindra & Mahindra Financial Services Ltd., Worli.

                    2. The case of the Complainant in brief is that the Complainant in order to maintain his livelihood has purchased one Mahindra Verito-D4 BS-3 bearing chassis No.MAILSRGKFD2G88703, Engine No.D178364 vide contact No.23124408 on hire-purchase basis from the O.Ps on 16.09.2013 by depositing a sum of Rs.1,65,120/- (Rupees one lakh sixty five thousand one hundred twenty) only as initial payment. Further, the O.Ps did not give the copy of agreement to the Complainant and he came to know from the office letter of the O.Ps that the finance amount is Rs.5,10,000/- (Rupees Five lacs ten thousand) only and financial charges are Rs.1,56,220/- (Rupees one lakh fifty six thousand two hundred twenty) only and total agreement value is Rs.6,66,200/- (Rupees Six lacs sixty six thousand two hundred) only. The Complainant agreed to pay the above said amount in 43 installments, out of which 23 installments @ Rs.16,200/- (Rupees Sixteen thousand two hundred) only and last 20 installments @ Rs.14,680/- (Rupees Fourteen thousand six hundred eighty) only. The Complainant has paid the first installment of Rs.16,200/- (Rupees Sixteen thousand two hundred) only to the O.Ps at the time of finance. The Complainant has totally paid Rs.5,06,640/- (Rupees Five lakh six thousand six hundred forty) only and Rs.1,59,560/- (Rupees one lakh fifty nine thousand five hundred sixty) only is pending against him due to his Son's illness. Thereafter, on dtd.15.09.2016, the O.Ps suddenly came to his house and tried to repossess his vehicle without any prior notice, but the Complainant agreed to pay Rs.20,000/- (Rupees Twenty thousand) only towards outstanding loan amount, but the O.Ps did not receive the same rather threatened the Complainant and his family members. Then, on dtd.16.09.2016, the Complainant came to the Office of the O.Ps and requested to receive Rs.20,000/- (Rupees Twenty thousand) only, but they did not pay any heed to it and threatened the Complainant to repossess his vehicle, if the total outstanding loan amount will not be paid. Cause of action arose on 16.09.2016. The Complainant has prayed for compensation along with litigation cost. Neither the Complainant nor his Advocate was present at the time of hearing of this case.

                    3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, Consumer as well as the cause of action. The O.Ps have further submitted that a loan-cum-hypothecation agreement was executed with the Complainant at the time of financing, which contains the clause of arbitration, where all disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator. The O.Ps had provided loan to the tune of Rs.5,10,000/- (Rupees Five lacs ten thousand) only to the Complainant along with agreement value (including interest) was Rs.6,66,200/- (Rupees Six lacs sixty six thousand two hundred) only, to be repaid in 43 installments by the Complainant starting from 25.09.2013 and ending on 20.03.2017 for purchase of a Mahindra Verito vehicle bearing Engine No.D178364 and the Complainant has executed a loan-cum-hypothecation agreement in acceptance to the terms and conditions of loan transaction bearing No.2800194, dtd.25.09.2013 and thus, the Complainant has purchased the said vehicle. The said installments were to be paid within 20th day of every month. As per clause of the agreement, the Complainant is supposed to make the payment of the installments in time and in case of failure to do the same, the O.P shall be entitled to the remedies as available under the said agreement. The O.Ps have further submitted that on dtd.26.12.2016, the Complainant was supposed to pay 40 installments, whereas the Complainant has paid only 35 installments and was in default of Rs.73,080/- (Rupees Seventy three thousand eighty) only i.e. 5 installments and also late payment charges to the tune of Rs.20,264/- ( Rupees Twenty thousand two hundred sixty four) only in addition to the future receivables of Rs. 44,040/- (Rupees Forty four thousand forty) only (3 installments) was due and payable by the Complainant. Despite of several reminders to pay his dues, the Complainant did not pay the same. The O.Ps also submitted that the present Complainant has not come to this Forum in clean hands and has suppressed the facts. So, he is not entitled to any relief. The O.Ps have further stated that the vehicle in question is a commercial one. Therefore, the Complainant cannot be treated to be a “Consumer” as defined in Sec-2(d) (ii) of the C.P Act-1986. Hence, the present complaint is liable to be dismissed with cost and the Complainant may kindly be directed to make payment of the aforesaid dues to the O.Ps.

                    4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether there is any cause of action to file this case ?

(iii) Whether the Complainant is a Consumer under provision of C.P Act ?

(iv) To what relief the Complainant is entitled for ?

                    5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate was present at the time of hearing of this case. So, his pleading remains as it is. According to his pleading, it is admitted case that he is a defaulter in payment of loan availed by the O.Ps and the O.Ps threatened to take possession of the vehicle, which is claimed to be deficiency of service on the part of the O.Ps. So, the Complainant has filed this case before this Forum praying for compensation along with litigation cost. On the other hand, it has been argued on behalf of the O.Ps that though there is an arbitration clause, without availing such facility, the Complainant directly came to this Forum, for which this case is non-maintainable at this stage. But, according to settled principle of Law, if there is an arbitration clause, the Complainant is at liberty to take shelter before the Forum for his grievances. The O.Ps have also challenged that the Complainant is not a Consumer and the vehicle is a commercial one. But, it is a case of deficiency of service not for goods. According to the O.Ps, on 26.12.2016, the Complainant has to pay 40 installments and he has paid only 35 installments and was in default of Rs.73,080/- (Rupees Seventy three thousand eighty) only i.e. 5 installments and also late payment charges of Rs.20,264/- (Rupees Twenty thousand two hundred sixty four) only in addition to the future receivables of Rs. 44,040/- (Rupees Forty four thousand forty) only (3 installments) are pending, which should be payable by the Complainant. According to the settled principle of Law, the Hon’ble State C.D.R Commission, Odisha, Cuttack in Complaint Case No.43/2010 in the case of Sushanta Kumar Acharya (Vrs.) Magma Finance Corporation Ltd., Bhubaneswar held that while the Finance Company is claiming more, the Complainant is stating that he is to pay the Lesser amount, this being purely an accounts matter between the Parties, so the Consumer Forum or the State Commission can’t decide this case. Furthermore, the authority reported in Civil Appeal No.6347 of 2012 in the case of M/s Micro Hotel P. Ltd. (Vrs.) M/s Hotel Torrento Limited & Ors., where in it has been held by the Hon’ble Supreme Court of India that in case of loan, if the repayments are not received as per the scheduled time frame, it will disturb the equilibrium of the financial arrangements of the Corporations. They do not have at their disposal unlimited funds. They have to cater to the needs of the intended borrowers with the available finance. Non-payment of the installment by a defaulter may stand on the way of a deserving borrower getting financial assistance.   

                    6. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above authorities as discussed earlier, this Forum come to the conclusion that the Complainant is a Consumer, but other criteria for availing benefits from this Forum is wanting as mentioned earlier. When the Complainant is a defaulter, the O.Ps at liberty to realize the same by way of taking the vehicle to his possession as per Law. So, in our opinion, it is a fit case to dismiss as the Complainant is not entitled for any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-       

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.  

                         Pronounced in the open Forum on this day i.e. the 27th day of March, 2018 given under my Signature & Seal of the Forum.