Smt. Saraswati Das,W/o:- Sri Abhimanyu Das,
At:-Tilada, Po:-Eram, P.S:- Basudevpur.
Dist:-Bhadrak. ……… . . .Petitioner.
(Versus)
01- The General Manager.
HINDUJA LEYLAND, FINANCE Ltd.
HIG-46, Jaydev Vihar, Durgapuja Mandap ,
Bhubaneswer- 751013, Dist- Khurda ,Odisha.
02- The Manager, LAXMI HONDA.
At/Po/Ps:-Basudevpur, Dist:-Bhadrak, Odisha.
………. Opposite Parties.
Counsel for Complainant : Sri G. Bal, Advocate & Other.
Counsel for O.P.No.1 : Sri Rajeeb Kumar Barik, Advocate.
Counsel for O.P. No. 2 : Sri Pradeep KumarMishra, Advocate.
Date of hearing : 26.12.2022.
Date of order : 31.01.2023.
J U D G M E N T.
SHRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
Case of the complainant is that for daily use of family members & eradicates their inconvenience, the complainant intended to purchase a two wheeler in name of her husband Abhimanyu Das. Accordingly the complainant purchased the motorcycle i.e. Honda Shine on 30.03.2018 for Rs. 60,568/- under financial assistance from Hinduja Leyland Finance i.e. O.P. No.2 from Laxmi Honda i.e. O.P. No.1. The tenure of the loan taken for O.P. No.2 is upto December 2019. The O.P. No.1 never supplied any copy of the loan agreement in respect of the vehicle loan extended between the complainant & O.P. No.1. The complainant fell seriously ill due to cardiac malfunctioning and she became unable to pay the loan installment as agreed. The complainant avers to has informed the OP No1 about her illness. But the O.P. No.1 forcibly repossessed the vehicle on 26.08.2019. The OP No.1 further turned down her request to receive the installments and release the vehicle in her favour. She has issued legal notice through her advocate on 21/10/2019 through registered post with ad. But the OP No1 instead issued a reply on 15/11/2019 asking for more amount due and threatened to sale the repossessed bike within 7 days. These Ops have never supplied any copy of the loan agreement despite repeated asking. These O.Ps alluring the customers by colorful advertisement and at the same time they are financing the vehicles without any future reference with high amount of interest which is not only malafied but also unfair trade practice.
O.P. No.1 submits that Hinduja Leyland Finance Ltd. is a Public Limited Company incorporated under the provisions of the Companies Act, 1956. The answering O.P. denies & disputes all the contentions, claims, demands, allegations, averments, imputations & insinuations of the complainant. O.Ps says as per the established principles of law, the complainant does not fall within the definition of ‘consumer’ & the relationship between the complainant & the O.P. is that of ‘borrower’& ‘lender’. It is essentially a civil dispute for which the complaint is not maintainable under the C.P. Act. Bare perusal of the complaint shows that the O.P. is not at issue with the complainant on any question of law or of facts. It is pertinent to mention that, the complaint is not maintainable as the loan agreement contains the clause for Arbitration & Territorial Jurisdiction where all the disputes, differences, claims & questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator, clause 22.1 of the agreement is as follows :
“(a) All disputes, differences and/or claim arising out of this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provision of the Arbitrator nominated by the Managing Director of the Lender. The Award given by such an Arbitrator shall be final & binding on the Borrower to this Agreement.”
(b) The venue of arbitration proceeding shall be at Chennai.
© The Arbitrator so appointed herein above, shall also be entitled to pass an Award on the hypothecated asset & also on any other securities furnished by or on behalf of the Borrower.”
It is a settled principle of law that the benefit of the justice delivery system should not be available to the person who has violated the law & has not come to the court in clean hands. Petitioner is guilty of suppression of facts & malicious misrepresentation. The fundamental maxim is that the plaintiffs in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle the complainant is not entitled to any relief as she has not come to the Commission with clean hands and has suppressed the material facts. Complainant has filed the case maliciously to get rid of the loan liability & to escape from the legal proceedings going to be initiated against her. The said OP relies on the decision of Hon’ble Apex Court in Civil Appeal No.6347 of 2012 “M/s Micro Hotel P. Ltd. Vrs. M/s Hotel Torrento Ltd. &ors” wherein it has been observed at Paragraph 23 that “… a duty cast upon the borrowers to repay the installments in time…. 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 stands on the way of a deserving borrower getting financial assistance.”
The authority reported in 2015 (4) CPR-148 (N.C.) in the case of Sunny &Ors. Vrs. Rajesh Tripathy, wherein it has been held by the Hon’ble National CDR Commission, New Delhi that financing& 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 & in such circumstances, complainant does not fall within purview of consumer. Further, the authority reported in III (2006) CPJ-247 (N.C.) in the case of Ram Deshlahara Vrs. Magma Leasing Ltd, wherein it has been held by the Hon’ble National CDR Commission, New Delhi that under a hire purchase transaction, the financer does not render any service within the meaning of C.P. Act & the petitioner is thus, not a consumer. Fact of the case is that, admittedly the complainant failed to pay regular installments to the answering OP. Suppressing the fact of keeping a huge amount of loan unpaid, the complainant has made false allegation of illegal &forceful repossession of her vehicle. The OP has suffered huge loss in this transaction. When a huge amount of loan amounting to Rs.14,094/- remained outstanding against the complainant as on 14.08.2019 wherein she was asked to pay the outstanding amount within 3 days & she was also made aware that, in the event of default, her vehicle would be seized & when the complainant did not care the demand notice, the O.P.No.1 after intimating the concerned Police Station on 26.08.2019 peacefully repossessed the vehicle by drawing proper inventory & after repossession the O.P.No.1 also intimated the concerned Police Station regarding peaceful repossession. Exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Moreover, it has been held by Hon’ble Supreme Court in Suryapal Singh Vrs. Siddha Vinayak Motors & Anr. II (2012) CPJ 8 (SC) that, “Under the Hire Purchase Agreement, it is the financer who is the owner of the vehicle & the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment has always been upheld to be a legal right of the financier. There being no deficiency of service, unfair trade practice etc. attributable to this OP, the complainant is not entitled to any relief as claimed by her & this case is liable tobe dismissed on merit.
O.P. No.2 also denies all averments made in the complaint and say it to be barred by limitation and also questions its maintainability. It denies its complicity in the matter and says that it has no knowledge about the dispute between O.P.No.1 and the complainant and says that he has been unnecessarily made a party in this consumer complaint and that he cannot be jointly and severally liable with O.P. No.1 and the as whatever claim is there made by the complainant is against the O.P.No.1, his name should have been struck down.
After hearing the rival contentions and examining the material evidences available in record these following issues cropped up to be answered before arriving into the rightful conclusion of the dispute:
Issue No.1
Whether complainant fall within the definition of ‘consumer’ ?
Issue No.2
Whether the consumer complaint is barred by limitation ?
Issue No.3
Whether O.P. No.1 forcibly repossessed the vehicle on 26.08.2019 ?
Issue No.4
Whether these OPs are deficient in providing service and indulged in unfair trade practice?
Issue No.5
If so, then what relief the complainant is entitled to ?
The answer to issue no.1 is that when the complainant sought to acquire the vehicle but he did not have adequate fund to purchase the vehicle, he approached the OP for financial assistance to purchase the same. As the complainant hirer agreed to pay the finance charges who in turn makes the finance available to him. So the finance charges constitute the consideration paid by the hirer complainant to the financer OP. So, the complainant is very much a consumer within the meaning of section 2(7) of COPRA, 2019. So, issue no.1 is answered in favour of the complainant.
The complaint is filed on12/12/2019 and the cause of action arose on 2/10/2019. So the consumer complaint has been filed within limitation period of 2 years, as envisaged in section 69 of COPRA, 2019.So, Issue No.2 is answered in favour of the complainant.
So far as the issue no.3 is concerned,thereis no evidence whatsoever to say that the vehicle has been repossessed forcibly. There is no evidence of any reporting before any police station by the complainant against the alleged commission of forcible repossession. On the other hand O.P.No.1 after intimating the concerned Police Station on 26.08.2019 peacefully repossessed the vehicle by drawing proper inventory & after repossession the O.P.No.1 also intimated the concerned Police Station regarding peaceful pre & post repossession. Exercising legitimate right to recover the dues by a financer cannot be termed as forcible repossession nor the same can be treated as deficiency of service or unfair trade practice. So, issue no.3 is answered against the complainant.
Despite repeated directions by this commission these OPs failed to produce the account statement and present status of the repossessed vehicle. There is no doubt in the mind of the commission that these OPs are deficient and negligent in providing service. Even if the OP is entitled to receive the financial charges, they are to supply the copy of the agreement and statement of account to the complainant. OP did not receive any outstanding installment and turned down the request to release the said vehicle and they even did not bother to reply to the legal notice of the complainant. This is no evidence on record to say that Annexure-A notice dtd. 14.08.2019 is served upon the complainant. The complainant has taken financial assistance of only Rs.45,200/- to purchase a vehicle costing Rs. 60,668/- that means she has made a down payment of Rs.15,368/- at the time of purchase of the vehicle and further she has paid some installments. Under these circumstances, it is harsh on the complainant to repossess the vehicle before tenure of loan which is December 2019 is complete. So, issue no.4 is answered in favour of the complainant that the OP No.1 was negligent and deficient in providing service to the complainant.
Lastly, issue no.5 raise the point as to what relief the complainant is entitled to ? The OPs failed to inform the court about the current status of the vehicle even after repeated direction by this commission. The complainant though verbally said that her vehicle has been kept at the Chandikhole Stock Yard of the OP No.1 but failed to file any proof to substantiate her version. So, even if the commission is inclined to direct the OP No.1 to release the vehicle but in view of elapse of 3 years in between and considering executability of the order the commission is not inclined to order for release of the vehicle in her favour. O.P. No.2 has no complicity and knowledge about the dispute between OP No.1 and the complainant and that he cannot be jointly and severally liable. So, the commission dims it fit and proper to allow the prayer on non-standard basis against O.P. No.1.
O R D E R.
Accordingly the complaint is allowed on non-standard basis and O.P. No.1 is directed to refund the down payment i.e. Rs.15,368/-(Rupees fifteen thousand three hundred and sixty eight)made by the complainant at the time of purchase of the case vehicle which may be used as down payment for the complainant to purchase another vehicle and pay another Rs. 5000/- (Rupees five thousand) towards harassment and mental agony and Rs.2000/- (Rupees two thousand) towards cost of litigation within 30 days of receipt of this order, failing which additional 5% interest per annum shall be charged on the awarded amount from the date of order till the date of payment. No order against O.P. No.2.
This order is pronounced in the open Court on this the 31st day of January 2023 under my hand and seal of the Commission.
