DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 23rd day of September, 2019
C.D Case No. 70 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Pradeep Kumar Panda
S/o Radhakrushna Panda
Vill: Baghurai,
Po: Madhabnagar,
Ps: Bhadrak (T),
Dist: Bhadrak
……………………. Complainant
(Versus)
The Manager,
Hinduja Leyland Finance Ltd.
At: By-pass,
Po/Ps/Dist: Bhadrak
…………………………..Opp. Parties
Counsel For Complainant: Sri B. Swain & Others, Adv
Counsel For the OP: Sri P. K. Mishra & Others, Adv
Date of hearing: 22.04.2019
Date of order: 23.09.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the OP to the effect that the complainant had purchased an Auto Rikshaw which was financed by Hinduja Leyland Finance Ltd., on 24.07.2015 and the total cost of the Auto Rikshaw is Rs 1,37,000/- and the complainant deposited Rs 43,000/-. The details of the Auto Rikshaw such as namely RE COMPACT DIESEL AUTO, Regd. No. BAZWFB1359, Chassis No. MD2A26 AZ3FWB12311, Colour Black. It was agreed between the complainant and the OP that the rest of the amount would be paid by the complainant within 42 installments. The complainant continued to deposit the installments regularly till the Month of July 2017 but on 23.08.2017 the OP repossessed the said Auto Rikshaw then the complainant deposited Rs 5,000/- in the office of the OP on 29.08.2017 but it is a sorrowful matter that the OP sent a notice to the complainant to take away the said Auto Rikshaw forcibly.
The complainant had deposited Rs 1,16,097/- and towards the installments totally and Rs 43,600/- as security deposit. The complainant had deposited Rs 1,37,000/- till dt. 21.11.2018. The OP has intentionally harassed the complainant. As the complainant continuously and regularly had been depositing the installments but the OP knowingly harassed the complainant and caused deficiency of service to the complainant, so the later has been compelled to take shelter under this Forum for obtaining redressal.
Hence the complainant has sought for the following reliefs.
1. The OP be directed not to repossess the Auto Rikshaw in question.
2. The OP be directed to stop harassment and threatening.
3. The OP be directed to pay Rs 50,000/- towards compensation for mental agony and harassment to the complainant, Rs 5,000/- towards cost of the litigation.
Documents filed by the complainant.
1. Statement of accounts- 2 sheets.
2. Welcome letter issued by the OP- 1 sheet.
3. Schedule of repayment- 1 sheet.
4. Letter to the complainant on behalf of OP- 1 sheet.
5. Vehicle release letter from OP to the complainant- 1 sheet.
6. Another release letter to the complainant from the OP issued on dt. 18.03.2017- 1 sheet.
Similarly the OP filed his written version on 17.11.2017 as follows that Hinduja Leyland Finance Ltd., a public limited company incorporated under the provisions of the companies Act, 1956 having its registered office at No. 1 Sardar Patel Road, Guindy, Chennai- 600032 & corporate office at No. 27 A, Developed Industrial Estate, Guindy, Chennai- 600032 and branch office at By-pass Road, Bhadrak. The answering OP denies and disputes all the contentions, claims, demands, allegations, averments, imputations of the complainant against the answering OP, save what are matters of record and what has been specifically admitted herein. The complaint is totally frivolous and contrary to the well established law and binding judicial precedents. The present case is not maintainable in the eyes of law and facts. There is no cause of action for filing the case. As per the established principles of law, the complainant does not fall within the definition of “consumer” and the relationship between the complainant and the OP is that of “borrower” and “lender”. As such, no consumer dispute arises. It is essentially a civil dispute for which the complaint is not maintainable under the CP Act. The vehicle in question is a commercial one. Therefore, the complainant cannot be treated to be a ‘consumer’ as defined in Section 2 (d) (ii) of the CP Act, 1986. Hence, the complainant is liable to be dismissed. Even though the complainant has mentioned that he has purchased the same for earning livelihood. It will not help him to be treated as ‘consumer’ as defined in Section (d) (ii) of the CP Act. Intention of legislature as can be gathered from the definition of consumer, is to deny the benefits of the act to person purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large scale.
That, 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 and has not come to the Court in clean hands. The present complainant is guilty of suppression of facts and malicious misrepresentation. The fundamental maxim is that the plaintiffs in equity most come with perfect property of conduct, or with clean hands. In application of the principle the complainant is not entitled to any relief as he has not come to the Forum with clean hands and has suppressed the material facts. The complainant has filed the case maliciously to get rid of the loan liability and to escape from the legal proceedings going to be initiated against him. It has been observed by the Hon’ble Apex Court in civil Appeal No- 6347 of 2012 “M/s Micro Hotel Pvt. Ltd. Vrs. M/s Hotel Torrento Ltd. & others” in Para 23 that “….a duty cast upon the borrowers to repay the installments in time….. if the repayments are not received as per the schedule 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.”
Hence the OP had prayed for the dismissal of this proceeding. The OP have filed the following documents.
1. Statement of account as on 11.05.2017- Annexure- 1- 2 sheets.
2. The C.C. of 43/2010- Annexure- 2- 1 sheets.
OBSERVATION
We have already perused the complaint and written version filed by the complainant and the OP as well as the documents filed by them. We have observed that the complainant is a bona-fide consumer and customer of OP. The care record reveals that in spite of depositing the EMI’s. The OP has threatened to repossess the Auto Rikshaw in question forcibly. The OP did not serve any prior notice nor he served any demand notice or any notice for repossession. According to the procedure the OP has not informed to the local police before repossessing the vehicle. Rather he has violated the norms of the agreement. The OP has threatened to repossess the vehicle on dragging it by the help of muscular power. As a result of which the complainant has sustained irreparable, harassment and mental agony. As per the complaint and documents filed by the complainant it reveals that the complainant has not defaulted on payment of the EMI’s. So we have held that the OP has caused deficiency of service, mental agony and harassment towards the complainant. Hence it is ordered;
- ORDER
The complaint be and the same is allowed in part against OP on contest. The OP is here by directed not to repossess the vehicle in question till the pending arrear payment is made by the complainant within the stipulated time as mentioned herein. The OP is also here by directed to pay Rs 5,000/- as compensation to the complainant towards mental agony and harassment as well as he is also directed to pay Rs 2,000/- to the complainant towards cost of the litigation. Simultaneously the complainant is here by directed to pay back the loan dues outstanding against him together with up to date interest and cost as on the date of order. This order must be carried out by the parties within 30 days on receipt of this order.
This order is pronounced in the open Forum on this day of 23rd September, 2019 under my hand and seal of the Forum.
