DATE OF FILING : : 27.05.2016.
DATE OF S/R : 27.05.2017.
DATE OF ORDER : 29.03.2018.
Maheswar Jana,
son of late Bholanath Jana,
residing at Kona, Malikpara, P.O. Kona,
P.S. Dasnagar, District Howrah,
PIN 711104. …………………….………………..……….……..…… COMPLAINANT.
Senior Manager / Chief Manager,
UCO Bank,
Kona Branch. ……………………………………………….….……OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Abdul Kuddus.
Hon’ble Member : Shri Sajal Kanti Jana.
F I N A L O R D E R
Facts of the case of the complainant, in short, is that complainant purchased a vehicle ( Mini Bus ) after taking commercial loan from o.p. Bank and the vehicle was hypothecated to the o.p. Bank. There was a condition that the loan will be repaid by EMI @ Rs. 22,740/-. The number of the vehicle ( Mini Bus ) which this complainant purchased on loan and hypothecated is WB 11C/3051. Complainant could not be able to pay some monthly installments. So the O.P. Bank has started threatening to make seizure of the case vehicle. So this complainant has filed this complaint and prayed for passing an award directing o.p. Bank not to attach the Mini Bus bearing no. WB 11C/3051 and also has made prayer for extending the period of monthly installments.
This case is being contested by the o.p. Bank by filing written version denying all allegations as made in the petition of complaint contending interalia that Rs. 11,13,403/- is due. So this complainant was asked vide letter dated 12.4.2016 to pay Rs. 1,65,000/- and to up to date account, besides, the payment of defaulted amount
POINTS FOR DETERMINATION :
i) Is the case maintainable in its present form ?
ii) Whether the complainant is a ‘Consumer’ as per provision of Consumer Protection Act, 1986 ?
iii) Whether there is any deficiency in service and unfair trade practice on the part of the o.ps as alleged ?
iv) Whether the complainant is entitled to the reliefs as prayed for ?
DECISION WITH REASONS :
Ld. advocate for the complainant made argument interalia that this complainant purchased one mini bus after taking commercial loan from the o.p. bank and this complainant regularly paid the installments of the loan to the o.p. Bank ; but due to serious his illness the complainant has made default in payment of some E.M.Is. So the o.p. Bank has started threatening to take possession of the case vehicle. Complainant is ready to repay the loan amount if the complainant is given time to make repayment. So this complainant has filed this complaint and prayed for relief for passing award to extend period of payment of EMI and also made further prayer restraining o.p. Bank not to seize the mini bus involved in this case and other reliefs.
On the other hand ld. advocate for the o.p. Bank argued interalia that this complainant has made default in payment of loan amount several times he was requested to pay EMIs but fails. So complainant is a defaulter in payment of loan amount. So this complaint is liable to be dismissed.
We have carefully heard the submission made by the ld. advocate for the both sides. Perused the petition of complaint and the written version and the photo copies of documents filed by the complainant.
It appears that it is undisputed that complainant purchased case Mini Bus bearing registration no. WB 11C 3051 and the said mini bus was hypothecated to the bank against the case loan. It is also undisputed that this complainant has made default in repayment of EMIs of loan.
After considering the materials on record and the documents i.e., Memorandum to Sr. Manager, Kona Branch, Howrah, for financing commercial vehicle under UCO Commercial Vehicle Finance Scheme. It appears that the nature of case loan was given for purchasing a mini bus under UCO Commercial Vehicle Finance Scheme to this complainant.
Let us see whether this complainant comes under the definition of consumer ?
It is defined in Section 2(d)(ii) that “consumer” means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
For the purpose of this clause, “ commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
In the present case this complainant took case loan for commercial purpose i.e., for business.
On careful perusal of the petition of complaint it appears to us that complainant has nowhere stated that he took the case loan for purchasing mini bus and such activity was his only means of earning livelihood by way of self employment.
It has been observed by the Hon’ble National Commission reported in 2017 (4) CPR page 39 interalia that “Consumer Protection Act, 1986 – Section 2(1)(d) – Financial services – Hire-Purchase – Repossession of vehicle by Financier for default in repayment of loan amount – Complainant has taken commercial loan for purchasing truck – No specific averment that truck was purchased by complainant for the purpose of earning his livelihood by way of self-employment –Complainant / petitioner cannot be said to be a consumer as defined in Consumer Protection Act – Since petitioner / complainant was not a consumer of respondent, District Forum had no jurisdiction to decide complaint on its merit and petitioner ought to have been relegated to Civil Court for redressal of grievance - No good reason to interfere with order dismissing complaint but dismissal of complaint will not come in way of petitioner / complainant approaching Civil Court for redressal of his grievances.”
So in view of the observation of the Hon’ble National Commission referred to above we find that there is no specific averment in the petition of complaint that the case mini bus was purchased after taking commercial loan from the o.p. Bank by the complainant for the purpose of earning his livelihood by way of self employment. So this complainant does not come within the explanation I as defined under Section 2(1)(d) of the C. P. Act, 1986 as consumer. So we hold that this complainant is not a consumer of the o.p. Bank as defined in Section 2(1)(d) of the C. P. Act, 1986.
It has been observed by the Hon’ble National Commission reported in 2015(2) CPR page 640 (NC) interalia that petitioner who is not a consumer has no right to maintain consumer complaint. It has also been observed by National Commission reported in 2018(1) CPR 440 (NC) that as this complainant cannot be said to be a consumer in terms of Section 2(1)(d) of the C.P. Act, 1986. So this Forum would have no jurisdiction to entertain this consumer complaint.
So in view of above facts and circumstances and discussion made above we hold that this complainant is not a consumer. So he has no right to maintain this consumer complaint. So this consumer complaint is liable to be dismissed.
We restrain ourselves from making any observation about the entitlement of relief as sought / prayed for by the complainant in this petition of complaint as it has been held by us that this complaint is not maintainable. But in view of observation of the Hon’ble National Commission reported in 2017 ( 4 ) CPR page 39 ( NC ) we like to give a liberty to the complainant to approach before the Civil Court having jurisdiction for appropriate legal remedy for redressal his grievance according to law for interest of justice.
In view of the circumstances, we hold that this complaint is liable to be dismissed.
Hence,
O R D E R E D
That the C. C. Case No. 189 of 2016 ( HDF 189 of 2016 ) be and the same is hereby dismissed on contest but without cost.
Interim order if any stands vacated.
That the complainant is given liberty to avail appropriate legal remedy by approaching before the appropriate Forum / Civil Court having jurisdiction according to law.
Let a plain copy of the judgment be given to the both sides, free of costs, as early as possible.
DICTATED & CORRECTED
BY ME.
( Sajal Kanti Jana)
Member, C.D.R.F., Howrah.
