ORDER BY HON’BLE PRESIDENT- MR. P.K. PADHI:

                                                                                                    JUDGMENT

            Complainant has filed the consumer complaint U/s.35 if C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite parties to release the vehicle bearing No.OD-05-Y-7771 immediately and permitting complainant to pay the balance amount if any in installments after adjustment of the charges Rs.40,000/- towards cost of the diesel, Rs.12,00,000/- towards loss of earning for 11 months, Rs.2,50,000/- towards cost of harassment and mental agony and Rs.70,000/- towards litigation cost”.

            The brief fact of complainant is that, the complainant approached for truck loan of Rs.22,78,978/- from Magma Fincorp Ltd. in December, 2016 to maintain his livelyhood. Subsequently Magma Fincorp Ltd. was taken over by Poonawalla Fincorp Ltd. and thus Poonawalla Fincorp Ltd. is the financer in respect of the concerned vehicle bearing Regd. No.OD-05-Y-7771, Engine No.CTPZ141947 and Chassis No.MH 1KACFDOGPTW1546. There is no allegation that the complainant has multiple vehicles and it is the only vehicle in which he was engaged and maintaining his livelyhood and supporting the family. Thus the complainant is a consumer as defined U/s 2(7) of Consumer Protection Act, 2019.

            As per the agreement the entire loan should have been repaid by December, 2021 but due to outbreak of Covid-19 complainant applied for moratorium of six months for which, period of repayment was extended till 01.6.2022. Due to Covid-19 complainant business was hampered for two years. Instead of difficulties complainant has paid the EMI sincerely till October, 2021 which was 57 EMIs and another installment was paid as per order of this Commission thus complainant has paid 58 installments out of 66 installments

            On 01.11.2021 the opposite parties started threatening the complainant to repossess the vehicle for which complainant filed C.C. No.218/2021 in which “It was directed not to repossess the vehicle and to release the vehicle by taking installment and as per the direction of this Commission complainant has paid 3 EMIs on 01.02.2023. As such there were only 5 EMIs due to be paid by the complainant to the opposite parties. The order passed by this Commission in C.C. No.218/2021 was challenged in F.A. No.265/2022 and the order passed by the Commission was set aside by Hon’ble State Commission. After the order of Hon’ble State Commission E.A. No.11/2022 was dropped by this Commission on 10.01.2023, when it was brought to the notice of Commission regarding order of Hon’ble State Commission.

            After the order of Hon’ble State Commission the opposite parties requested the complainant to settle the issue. But the opposite parties proceeded to sale the vehicle without giving any opportunity and without following the guidelines issued by RBI vide its letter dtd.24.4.2009.

            Now the question is whether C.C. No.31/2023 is hit by the principle of Resjudicata as the case has already been decided in C.C. No.218/2021 which was set aside by Hon’ble State Commission in F.A. No.265/2022 for which the prayer of complainant in both the consumer complaint are quoted below to clarify whether the present case is maintainable or not;

            “Prayer of C.C. No.218/2021 – Direct the opposite parties not to repossess the vehicle bearing No.OD-05-Y-7771 till disposal of consumer complaint.”

            “Prayer of C.C. No.31/2023 – Direct the opposite parties to release the vehicle bearing No.OD-05-Y-7771immediately and permitting complainant to pay the balance amount if any in installments after adjustment of the charges claiming Rs.10,00,000/- towards cost of the vehicle, Rs.40,000/- towards cost of the diesel,  loss of earning for 11 months Rs.2,50,000/-,  towards cost of harassment and mental agony and Rs.70,000/- towards litigation cost”.

            Thus the prayer in both the consumer complaint are different and thus we held the present consumer complaint is maintainable and not hit by the principle of Resjudicata, though the same has not been raised by the opposite parties.

            This Commission vide order dtd.01.02.2023 directed to release the vehicle on receipt of 3 EMIs out of the total due 8 EMIs. The opposite parties did not receive the amount for which the D.D. vide No.027105 dtd.28.02.2023 of Rs.1,95,000/- is still laying with this Commission and the opposite parties did not receive the amount and did not appear personally as directed by this Commission on 03.3.2023. The opposite parties have filed written version that complainant is not a consumer and this Commission has no jurisdiction and the parties are to abide in terms of Arbitration Agreement. To the aforesaid objection we are of the view that consumer complaint U/s.35 of C.P. Act, 2019 is maintainable in view of the settled principles of law in the case of M/S. Manas Constructions vs L & T Finance Ltd. & Anr. judgment dt.10.10.2017. Referring on the judgment of Hon’ble Supreme Court in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and Another, (2012)2 SCC 506, wherein the Hon’ble Apex Court held as follows: “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force”. The opposite parties have submitted that the order dtd.07.12.2021 directing not to repossess was not extended beyond 23.12.2021 when the opposite parties are clearly aware about the defunct of this Commission during that period and in the mean time the vehicle in question was repossessed on 24.3.2022 after which the complainant knock the door of this Commission on 29.3.2022 in misc case No.32/2022 arising out of C.C. No.218/2021 wherein this Commission directed on 29.3.2022 as under;

            “Complainant has filed a consumer complaint bearing No.218/2021 along with a misc case No.32/2022 U/s.38 (8) of the C.P. Act, 2019 with a prayer that he has already paid a substantial amount towards liquidation of his loan to the opposite parties and some EMIs has not been paid due to certain constraints, the reasons which has been communicated to the aforesaid opposite parties. But the opposite parties have forcefully taken away the vehicle on 24.3.2022 and in a mood to sell the vehicle. Therefore the above opposite parties should be restrained from doing so or else the complainant having invested a very substantial amount may lose the asset (vehicle) for all days to come for non making repayment certain amount.

            Heard the advocate for the complainant ex-parte. Submission appears to be just and reasonable supported with affidavit. Hence considering the circumstances, issue notice to the opposite parties to file objection if any but in the meantime the opposite parties are directed to release the asset (vehicle) bearing Regd. No.OD-05-Y-7771, Engine No.CTPZ141947, Chassis No.MH1KACFDOGPTW1546 in favour of the complainant on receipt of 01 (one) installment within 15 days and not demanded any other charges and also not to take any coercive action against the complainant in respect to the aforesaid vehicle till dt.19.4.2022.”

            As per the order of this Commission complainant deposited Rs.65,000/-but the opposite parties did not release the vehicle but received the amount and in the meantime filed R.P. No.44/2022 wherein Hon’ble State Commission vide order dtd.12.7.2022 set aside the order of this Commission and directed to hear both parties afresh with speaking order. After disposal of F.A. No.265/2022, no notice or opportunity of being heard was given to the complainant and his vehicle has been auctioned without giving any opportunity to the complainant to participate in the process of auction in the concerned vehicle in which about 90% of the EMIs has already been paid by the complainant, which in our considered view amounts to negligence on the part of opposite parties which creates deficiency of service and unfair trade practice  as defined U/s 2 (11), 2 (47) of Consumer Protection Act, 2019. Since the opposite parties are financial institution they are to abide by the guidelines framed by RBI, and we also took note of Hon’ble Supreme Court Civil Appeal No.9711 of 2011 which is as under;

            “The last person to address us was Shri Dharampal Yadav, Respondent No.1 in Special Leave Petition (Civil) No.9550 of 2009 and Special Leave Petition (Civil) No.10544 of 2009, who appeared in person. He submitted that in most cases, the various guidelines framed by the Reserve Bank of India and the Bank themselves, were not followed and more often than not the hypothecated goods, mostly vehicles were forcibly taken possession of by Recovery Agents hired by the financiers. Mr. Dharampal Yadav submitted that the methodologies adopted by the Recovery Agents were contrary to the guidelines laid down by the Banks themselves and in the decisions of this Court in several other matters, where it has been uniformly indicated that recovery would have to be affected in due process of law and not by the use of muscle power.”

            The complainant also relied decision of State CDR Commission, Gujrat, wherein Hon’ble State Commission, Gujrat directed in para 15 as follows;

            “In view of the above discussion, we are of the view that the appellant has acted arbitrarily with the complainant and vehicle was get repossessed. We have also noted that the vehicle was sold by the appellant without giving the opportunity to the complainant to take part in the auction of vehicle. Therefore, this can be said to be deficiency of service on part of appellant. The judgment and order passed by the District Commission is proper, legal and correct on factual aspects as well as law point. We are of the opinion that the appeal is required to be dismissed with cost”.

            The aforesaid judgment of Hon’ble State CDR Commission, Gujurat squarely applies to the present case as the complainant has not been given chance to participate in the auction and no opportunity was given to participate in the process of auction. Rather it was the duty of opposite parties to inform the complainant before any auction.

            In view of the facts stated above and discussions made about we are of the view that the opposite parties have acted arbitrarily with the complainant in spite of the interim protection of this Commission. We also took note that the opposite parties have already sold the vehicle but the ownership has not been changed by virtue of the direction of this Commission in order dtd.10.3.2023. We direct the opposite parties to return the vehicle in same condition as far as possible and the complainant shall pay 50% of the unpaid EMIs and in case if it is not possible to return the vehicle within a month then the opposite parties shall return (pay) 60% of the total amount to the complainant, which has been paid by the complainant in shape of initial deposit, registration charges and EMI amounts etc. We also impose cost of Rs.1,00,000/- (Rupees one lakh) for loss of business, Rs.1,00,000/- (Rupees one lakh) for mental agony and harassment and Rs.5,000/- (Rupees five thousand) towards cost of litigation. With the aforesaid observation and direction consumer complaint is disposed of.