The complainant has purchased a TATA ACE vehicle bearing registration No. KA-37/A-0462, for which he has obtained loan of Rs.2,70,000/- repayable in 42 monthly installments as mentioned in Schedule-3 and security by the hypothecation of the vehicle.  In the Loan-cum-Hypothecation Agreement, Ex.B.1 dated: February 9, 2011 and also restructured Loan-cum-Hypothecation Agreement, Ex.B.2 dated: 28-02-2013. The rate of interest was 11.88% p.a. to be computed with monthly rates on the outstanding balance with additional interest payable in 3% p.a. in case of any delayed payment.  Total amount payable was Rs.3,82,298/-.

            2.  The complainant has paid Rs.2,05,500/- only on 24 occasions that too not before due dates.  The amount paid also varies because the exact installment amount not tendered.  Particulars are available in paragraph – 2 of the complaint.

            3.  The reliefs sought in the complaint as stated therein are as follows;

1.  The complainant prays to before this Hon’ble Forum that the amount paid by the complainant to the opponents is to set off make the vehicle free from the mortgage loan amount.  Further it is prayed that, this opponents may be restrained from attaching the vehicle TATA ACE its No:KA:37/A0462.

2. Further the complainant praying for which caused by illegally attach and caused mental agony of Rs.1,00,000/- and also loss of income of Rs.1,00,000/- ordering the adequate compensation with advocate fee of Rs.50,000/- Total of Rs.2,50,000/- (Two lakh and Fifty thousand rupees only) in favour of complainant to be paid by the opponents.

3. To grant such other reliefs which are very much necessary to be granted in favour of this complainant in the interest of justice and equity.

4. In support of reliefs aforementioned the complaint averments are contained in paragraph – 5, 6, 7 & 8 of the complaint are as follows;

“5. X x x x the complainant has approached the opponent No.1 to give a clear balance sheet as to close the Loan account but the opponents not ready to given the account for closing the Loan account till today and such illegal demand made by the opponents is contrary to the agreement made between the complainant and opponents and also against the natural justice the opponents have refused to close down the Loan account at this juncture and such act of the opponents is perse illegal in the eyes of law and it amounts to the deficiency of service on the part of the opponents who have refused to close down the Loan account.  Hence the complainant has approached this Hon’ble Forum with the present complaint.

6.  The complainant after spending more time and listening evasive reply from opponent No.2 and 3 which in turn seems that they are adopting Unfair Trade Practice and a clear violation of terms and conditions of financial business and unnecessarily harassing the complainant and made the complainant to approach pillar to post without any positive solution or setting the dispute.  Hence it is a clear violation of expected services from the customer by the financial company even after receiving benefits for the customers under the terms of interest.

7.  xxxx, at the time of enquiry when the complainant has verified the documents of the said finance, it came to know than the complainant was surprised to know that the opponents has created a false documents by taking use of the signature made in the format finance loan papers, which was taken at the time of advancing the loan amount at the first instance the complainant not given any consent or not requested to advance the loan amount on the said vehicle.  Further the complainant has not received any re-loan amount sanctioned on 28-02-2013.  Further the complainant has not received any further loan amount with any point of time likewise the opponents finance was cheated to several customers.  Under such circumstances the opponents has misused the misused signature in the made the blank papers, and blank cheques etc.,

8.  The opponents No.1 to 3 wants to make wrongful loss to this complainant by getting fresh Registration Certificate and intends to real the vehicle with higher margin of price and to make wrongful gain by causing wrongful loss to the true owner.”

5. In paragraph 7 to 16 of the written version, the OP company contended as follows;

7.  As per loan agreement dated 9-2-2011, the repayment schedule Ist EMI was due on 20-3-2011 and last (42^nd) EMI was due on 20-8-2014.  As per terms of the agreement, the complainant did not honoured his commitment and not paid the monthly installments regularly.  He was become defaulter.  The complainant expressed his inability to pay the monthly installments.  Therefore, at the request of the complainant, his loan account is restructured in order to pay installments regularly, a fresh loan cum hypothecation agreement is executed by the complainant on 28-2-2013 under the guarantorship of one Mr.Doddabasappa of Jamapur.  As per said re-agreement the loan amount payable and finance charges agreed to be paid thereon is as follows;

1. Loan Amount                         -           Rs.1,85,000=00
2. Finance charges at the rate of

12.63% for 36 months         -           Rs.   70,255=00

Total amount repayable is   -           Rs. 2,55,255=00

Apart from above, the complainant has agreed and undertaken to pay O.D.C. at the rate of 36 % towards delayed payment of monthly installment.

8.  As per said re-agreement, I EMI was due on 5-4-2013 and last EMI is due on 5-3-2016.  The amount shown and claimed to be repaid under Sl.No.1 to 15 pertains to previous agreement.  The Sl.No.16 to 24 pertains to subsequent loan agreement.  The mode of payment claimed to be paid eloquently speaks the complainant is most irregular in payment of monthly installment and he is chronic defaulter.  Further OP No.1 and 2 have not at all taken the signatures of the complainant on blank documents and blank formats and also signature on the blank cheques.  The complainant has made a false reckless allegations against the OP No.1 and 2.   The allegation of taking signatures on the blank papers or collecting blank cheques must be relegated before the civil court not before the Consumer Forum.

9.  The entire contents of para 3 to 5 of the complaint are all false.  The complainant has collected statement of loan account on various occasions and not settled the loan account.  The OP No.1 has every time issued receipts for having received the amount from the complainant.  The vehicle loan dues payable by the complainant is favour of OP No.1 as on 19-12-2014 is Rs.2,23,315/-.  The vehicle will become free from mortgage or hypothecation only after payment is made to OP No.1

10.  The entire contents of para 6 to 8 are all false.  The complainant has concocted a false story to suit his ill-need.  The complainant has made false allegations that OP No.1 and 2 have created a false documents by taking use of the blank papers signed by the complainant.  The allegations of forgery, creation of documents or allegations of taking signature on the blank papers or cheques must be relegated before the competent court not before consumer Forum.

11.  It is submitted that as per the terms of loan cum hypothecation agreement, the essence of the agreement is prompt, punctual and regular payment of monthly loan installments.  According to Clause 5(a) of the agreement event of default means failure to make any payment to OP No.1 or any part of the loan amount on demand or any other rates or charge due and payable under the credit facilities.  Further upon occurrence of event of default the OP No.1 being a financier and absolute owner of the vehicle entitle to repossess vehicle without further notice as per clause 6(b) of the agreement.  In the present complaint, though OP No.1 has extended cooperation to the complainant by re-structuring his loan account, instead of clearing the loan dues of Rs.2,23,315/-, he has made a false and reckless allegations against OP No.1 and 2.

12.  As per the statement of vehicle loan account, the total dues payable by the complainant as on 19-12-2014 to the OP No.1 is Rs.2,23,315/-.  The OP No.1/financial institution has submitted a statement of accounts with its version.  Same may be read as part and parcel of this written version.

13.  The OP No.1 has intimated the complainant to pay the entire dues and get cleared his account.  Instead of clearing the dues of OP No.1 financial institution, the complainant has chosen to file the present false and dubious complaint against OP Nos.1 and 2 with revengeful attitude and harass them.

14.  There is no read cause of action to the complainant to file the present complaint.  The cause of action mentioned in para 9 of the complaint is false and illusory one.

15.  There is a Arbitration Clause in the agreement executed by the complainant in favour of OP No.1.  According to which, complainant has agreed and undertaken to get resolve his all disputes/claims through a Arbitrator appointed and nominated by the OP No.1 financial institution.  After having agreed to get resolve his disputes through a process of arbitration, the complainant has filed a false and untenable complaint before the Hon’ble Forum.  Therefore, in view of existence of valid arbitration agreement between the parties, this Hon’ble Forum has no jurisdiction to try the present complaint.

16.  The complainant has filed false complaint, contrary to the terms of LOAN CUM HYPOTHECATION AGREEMENT.  It is submitted that obligation arising out of the agreement cannot be questioned by the complainant before this Hon’ble Forum.  Moreover, the rights and obligations which are conferred by the terms of the agreement cannot be construed as “DEFICIENCY OF SERVICE”A within the meaning of Section 2(1)(C) of the Consumer Protection Act.  Therefore, such dispute cannot be adjudicates by this Hon’ble Forum.

6.  On 08-4-2015, advocate for OP has filed written arguments in this Forum wherein certain decisions have been cited.  We do not think it essential for us to deal with those decisions because present dispute is dismissed solely on ground that the relationship between the complainant and opposite party is only that of borrower and creditor and nothing else.

7.  The contents of Ex.B.1 and Ex.B.2 undoubtedly points out that the transaction is a simple loan transaction.  The relationship between the parties is that of debtor and creditor.  The OP Company has not undertaken any service to the borrower.  Lending money is not a service but is a business of the opposite company.  In other words, the complainant has not availed any service from OP Company but borrowed certain sum, which he has to repay in terms of agreement.  This is not a consumer dispute as the complainant is not a consumer as defined u/sec. 2(1)(d) of the Consumer Protection Act because the deficiency in service referred to in the complaint is not created in relation to any service to be referred by the creditor to the borrower in terms of the contract.  Hence the complaint is not maintainable in this Forum.

8.  For the reasons given above, the complaint stands dismissed.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.