Shri Debasish Bandyopadhyay,  Hon’ble President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant describing that the complainant have purchased one Bajaj Rickshaw vide regn. no. WB-15B/5422 after getting loan from the said opposite party no. 1 on the basis of a hire purchase agreement vide agreement no. H8934 which was made between the complainant and the opposite party and the cost of the aforesaid Auto Rickshaw with said loan is Rs. 1,55,820/- after inclusion of the documentation charges, management charges, hire charges, insurance charges, service charges and other charges. The number of installments was fixed for making total payment of the aforesaid loan amount was 35 and the first installment was fixed at Rs. 6220/- and the 2^nd installment to 12^th installment at Rs. 6400/- per month and the 13^th installment to 24^th installment at Rs. 4400/- per month and 25^th installment to 35^th installment at Rs. 2400/- per month. After making payment of total loan amount on 30.3.2017 the complainant asked for a statement from opposite party no. 1 and on 31.5.2017 the opposite party no. 1 have given a statement of hire purchase agreement to the complainant and after getting the statement the complainant was shocked and outraged by the demands of opposite party. In this statement the opposite party wrongly and frivolously demanded Rs. 25000/- as cheque return charges, Rs. 6980/- as collection charges and Rs. 10808/- as the late fine charges and Rs. 120/- as insurance amount due thus in total Rs. 43,008,16/- was demanded by this opposite party. The charges as demanded by the opposite party for cheque is wrong and this charge only taken in case of cheque bounce during loan period but till 31.5.2017 no cheque was bounced by opposite party no. 1 to the bank account of the complainant and so the complainant is not bound to pay such charges as wrongly demanded by the opposite party. Even collection charges is taken when any agent took the installment amount from the customer but during this loan period the complainant never meet with any agent and the complainant is also not liable to pay the insurance amount as this charges also falsely demanded by the opposite party no. 1. At the time of loan period some cheques were issued by the complainant for making payment but after making repeated request the opposite party no. 1 refused to give those cheques. However, on 15.12.2018 the complainant have received a notice u/s 138 N.I. Act from the opposite party and in that notice the opposite party no. 1 wrongly demanded Rs. 60,000/- from the complainant and after making several requests for return of route permit of the said auto rickshaw, the opposite party did not make any steps.

            Complainant filed the complaint petition praying direction upon the opposite party to return the route permit of the said auto rickshaw in question and to return the cheques in question and to pay a sum of Rs. 2,00,000/- as compensation for loss and injury suffered by the complainant and to pay a sum of Rs. 30,000/- for cost of instant complaint and others incidental charges to give any other relief or reliefs as deem fit and proper.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and states that the opposite party no. 1 lent money amounting to Rs. 1,55,820/- to the complainant which will be payable by 35 installments commencing from 30^th May, 2014. The amount which is still due and payable by the complainant are for CFLP Rs. 10,808.16/- + cheque return charges Rs. 25,000.00/- + insurance amount due Rs. 220.00/- + collection charges Rs. 6,980.00 (in total Rs. 43,008.16/-) as on 31.5.2017. There was a delay of 790 days in payment of dues. No dues were paid up by the complainant and the opposite party no. 1 is only a financer and the nature of transaction between them is banking in nature and not that of a consumer and service provider. The complainant has also entered into an Arbitration Agreement with the opposite party no. 1 and having once chosen a forum the complainant is barred from approaching any other forum except the Arbitral tribunal in terms of the loan agreement. The complainant purchases the said auto rickshaw for commercial gain and as such any commercial in nature cannot come within the purview of C.P. Act and the Forum has no jurisdiction to try the instant complaint because the cause of action arose against the opposite party no. 1 and the jurisdiction of the opposite party no. 1 at office address is not within this Ld. Forum and the complainant intentionally added opposite party no. 2 only to bring the aforesaid complaint within the jurisdiction of this ld. Forum. The opposite party no. 1 never kept any cheque of the complainant save and except which was submitted by the complainant for payment of duce and all the cheques have been deposited with the bank which is well within the knowledge of the complainant. So the opposite party no. 2 submits that the instant complaint may kindly be dismissed with cost.

            The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and states that the complainant took hire purchase loan from the opposite party no. 1 for purchase of a Auto Rickshaw to use the same for commercial purpose and all the averments and the prayer is only against the opposite party no. 1 and so the opposite party no. 2 made party in this complaint for nothing just to harass by misusing the power of provisions of court of law. So, the name of the opposite party no. 2 shall be expunged from the cause tile of this complaint with an exemplary cost upon the complainant for ends of justice. The opposite party no. 2 has also prayed for dismissing this case with hearing cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit of complainant and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

All the issues/ points of consideration which have been framed in this case are clubbed together and taken up for consideration jointly due to convenience of discussion. In this connection it is important to note that at the time of argument ld. Advocates for the opposite parties highlighted a lot of argument on the point of maintainability of this case and so this matter is taken up for discussion at first. Over this issue on close examination of the pleadings of the parties as well as evidence on record it appears that prior to the filing of this complaint case, opposite parties initiated criminal proceedings against the complainant u/s 138 of N.I. Act and the said proceeding is pending and it has not yet been disposed of. In view of this position it is crystal clear that complainant has filed this complaint case to evade/ avoid his liability of cheque bounce case which has been initiated u/s 138 of N.I. Act. So, this matter is clearly depicting that the complaint case which has been filed by the complainant is not maintainable. Moreover complainant has also not filed any document relating to the criminal case which has been filed/ initiated by the opposite parties u/s 138 of N.I. Act. This matter is clearly indicating that there is intentional suppression of vital documents by the complainant side. This matter is also highlighting that the complainant has not come before this Court with clean hand and for that reason complainant is not entitled to get any equitable relief from this District Commission. This matter is also reflecting that this complaint case is also not maintainable. Moreover, on close examination of the higher purchase agreement it appears that the complainant had purchased the auto rickshaw for the purpose of earning and so the complainant purchased the said auto rickshaw for commercial purpose. In this regard it is the settled principle of law that when a person avails service for commercial purpose to come within the meaning of consumer which has defined in the Consumer Protection Act, he would have to establish that services were availed exclusively for the purpose of earning his livelihood by means of self employment. This legal principle has been observed by Hon’ble Apex Court in the case of Shrikant G. Mantri vs. Punjab National Bank and reported in II (2022) CPJ 9 (SC). In this instant case the complainant has failed to establish in his evidence that the complainant has purchased the auto rickshaw for the purpose of earning his livelihood for self employment.

   In the above noted case law it has also been observed by the Hon’ble Apex Court that there cannot be any straightjacket formula and as such question will have to be decided in facts of each case depending upon evidence placed on record. In this regard on close examination of the pleadings of the parties as well as evidence on record it transpires that it cannot be said that the services availed by the complainant were exclusively for the purpose of earning his livelihood by means of self employment and for that reason complainant is not a consumer. This matter also reflecting that this case is also not maintainable in the eye of law.

   On close examination of materials of this case record it appears that one agreement for arbitration was executed in between the complainant and the opposite parties but facts remains that the complainant without availing the arbitration clause has filed this complaint case. This matter is also indicating that this compliant case is prematured case.

   A cumulative consideration of the above noted discussion goes to show that this case is not maintainable. As this case is not maintainable there is no further necessity of discussing other issues.

In the result it is accordingly

ordered

that the complaint case being no. 10 of 2019 be and the same dismissed on contest.

No order is passed is as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.