<br /> By SRI.K. VIJAYAKUMARN, PRESIDENT<br /> <br /> This is a complaint seeking a direction to the opp.party to issue a No Objection Certificate in respect of vehicle No. KL-04/K 6718 and for compensation and costs.<br /> <br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the registered owner of the Tata Sumo car bearing Reg.No.KL-04/K 6718. This vehicle was purchased availing a hire purchase loan from the opp.party as per the HPA No.CAR 365334 and contract dated 22.1.2002. As per the terms and conditions the HP amount was fixed at Rs.5,63,129/- which was to be repaid in 35 equal monthly <br /> instalment at the rate of Rs. 16050/- p.m, the 1st instalment was fixed as Rs.17,428/- . The last instalments was due on 25.11.2004. The complainant paid 34 instalments in time . But the last instalment amounting Rs.18,100/- including over due charge for the belated payments was paid on 15.12.2004 . After closing of the HP account the complainant requested the opp.party to issue the ‘No Objection Certificate’ but the same was not issued by the opp.party. Hence the complaint.<br /> <br /> The opp.party filed a version contending, interalia, that the complaint is not maintainable before this Forum. According to the opp.party the complainant is a hirer in a hire purchase agreement who is holding the vehicle as a Bailee and so does not come under the definition of Consumer. As per the terms of the agreement the complainant is a hirer of the truck and not a purchaser of truck it cannot be said that the complainant has hired the services of the opp.party to fall within the purview of consumer as defined in the Consumer Protection Act. In the averments in para one of the complaint the complainant himself admits that he is a business man and not a consumer. Therefore the complaint may be dismissed . The second para of the complaint is true and hence admitted. The 3rd para of the complaint is not fully correct. It is true that the company collected Rs. 5,63,129/- from the complainant. But the complainant has not remitted the overdue charges amounting to Rs.22,578.20. The agreement empower the opp.party to realise over due hire charges at the rate of 36% per annum. The complainant did not regularly remit the monthly instalments and continued as a defaulter. From the repayment schedule it is clear that the complainant was a defaulter No objection certificate cannot be released without out paying the over due charges. The opp.party has every right to demand overdue charges on belated payments. The dispute as per the hire purchase agreement have to be settled by arbitration to be held at Mumbai. Mumbai Courts alone shall have exclusive jurisdiction in respect of any matter claim, or dispute arising out or in relation to the hirer purchase agreement between the complainant and opp.party. The opp.party has every right to issue notice requiring the hirer to surrender the vehicle or to repossess the same. The exercise of that right under the hire purchase agreement cannot be construed as deficiency in service . Therefore, the complaint is not maintainable. The subject matter of the complaint is money transaction and its repayment and over due charges based upon a hypothecation . The dispute is with regard to the amounts and accounts between the parties and the consumer Forum is not the proper Forum for taking accounts and deciding the amount due to any party . That being settlement of accounts this Forum has no jurisdiction to entertain the complaint.. There is no deficiency in service on the part of the opp.party. There is no reason for the complainant to suffer physical or mental agony . H has not suffered any loss or damages as claimed. The complainant is filed with a view to harass the opp.party. Hence the opp.party prays to dismiss the complaint with costs.<br /> <br /> Points that would arise for consideration:<br /> <br /> 1. Whether the complaint is maintainable before this Forum.<br /> 2. Whether there is deficiency in service on the part of the opp.party.<br /> 3. Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined. Exts.P1 to P5 are marked.<br /> <br /> For the opp.party Ext. D1 is marked<br /> <br /> Points 1 to 3:<br /> <br /> As a matter of fact there is no serious dispute that the transaction between the complainant and the opp.party is under a Hire Purchase Agreement. The complainant or the opp.party did not produce the Hire Purchase agreement. But in the complaint it is clearly stated that the complainant purchased Tata Sumo vehicle availing Hire Purchase Loan from the opp.party. The opp.party has also stated in the version that the transaction between them is under a Hire Purchase Agreementa. According to the complainant the total Hire Purchase amount was Rs.5,63,129/- which was to be repaid in 35 equal monthly instalments @ Rs. 16050/- except the 1st instalment which is Rs.17428/- and that he has completely repaid the amount on 15.12.2004 . Though the last instalment was due was 25.11.2004 he has paid the amount on 12.12.2004 with over due charges. But the opp.party did not issue necessary ‘ No Objection Certificate’. The case of opp.party is that though the complainant has paid Rs.5,63,129/- he did not pay the overdue charges for belated payment of monthly instalments and so no objection certificate cannot be issued.<br /> <br /> The main contention of the opp.party is that the complaint is not maintainable before this Forum on the ground that the complainant who is a hirer as per a Hire Purchase Agreement is holding the vehicle as a Bailee , who will not come within the purview of a ‘consumer’ under section 2 [I][d] of the Consumer Protection Act.. According to him the complainant has not purchased the vehicle but is holding the same as a ‘Bailee’ and he failed to pay the monthly instalments in time with the result that overdue hire charges @ 36% per annum accrued which is outstanding and therefore, the opp.party has every right to issue notice to the hirer to surrender the vehicle and repossess the vehicle. There is force in that contention. The statement of account Ext. P5 produced by complainant and D1 produced by the opp.party would show that there is delay in repayment of loan amount and as per the agreement the complaint is bound to pay penal interest @ 30% per annum. It is well settled that under a Hire Purchase transaction the financier does not render any service within the meaning of section 2 [1] [o] of the Consumer Protection Act and therefore, the complainant herein cannot be considered as a Consumer and reliance can be drawn from the decision of National Commission reported in III [2006] CPJ 247 [NC]<br /> <br /> The learned counsel for the opp.party argued that there is no deficiency in service on their part and that as per the terms of the agreement the opp.party has every right not to issue ‘no objection certificate’ until termination of agreement. The contention of the complainant that with the payment of Rs.5,63,129/- the hire purchase agreement has been terminated cannot be accepted in the light of Ext.P5 and Ext.D1. It is true that the complainant has repaid the entire amount as per the Hire Purchase agreement. But as argued by the opp.party when over due charges under the Purchase Agreement is outstanding the opp.party has every right to exercise their right to refuse to issue No Objection Certificate. Such exercise of right cannot be construed as deficiency in service and reliance can be drawn from the decision of the State Consumer Disputes Redressal Commission, Kerala reported in 2008 CTJ 663. For all that has been discussed above we find that this complaint is not maintainable. Point found accordingly. <br /> <br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> <br /> <br /> Dated this the 10th day of July, 2008.<br /> <br /> <br /> I n d e x<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Muhammed Kunju<br /> <br /> List of documents for the complainant<br /> P1. – Receipt<br /> P2. –Advocate notice<br /> P3. – Postal receipt<br /> P4. – Acknowledgement card<br /> P5. Statement of accounts<br /> <br /> List of witnesses for the opp.party: NIL<br /> <br /> List of documents for the opp.party<br /> D1. – Statement of accounts filed by the opp.party.<br /> <br /> <br />