State Consumer Disputes Redressal Commission
Lokman Ahamed Bux, Aged About 30 Years, ... vs Citicorp. Finance (India) Ltd., ... on 14 August, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK CONSUMER COMPLAINT NO.100 OF 2007 Lokman Ahamed Bux, aged about 30 years, son of Youssouf Bus, At-Kesharpur, P.O. Buxi Bazar, Dist. Cuttack, Proprietor of M/s Utkal Nirman, Plot No.C/9, Chandaka Industrial Estate, Chandra Sekharpur, Bhubaneswar, Dist. Khurda ... ... Complainant -Versus- 1. Citicorp. Finance ( India) Ltd., represented by its Managing Director, Citigroup Centre, 5th Floor, Bandra Kurla Complex, Bandra (E), Mumbai 2. Citicorp. Finance ( India) Ltd., Asset Based Finance (A.B.F.) Collections, represented by its Authorised Signatory, 5th Floor, Block B-22, Camac Street, Kolkata 3. Citicorp Finance ( India) Ltd., Bhubaneswar Branch, represented by the Head of its Branch, 1st Floor, Citi Centre, Plot No.A-5/1, Bhoi Nagar, Sachivalaya Marg, Bhubaneswar 4. Regional Transport Officer (R.T.O.), Bhubaneswar, Acharya Vihar, Bhubaneswar 5. Judhistira Mohanty, son of Banamali Mohanty, At/P.O. Badagada Podasahi, P.S. Badagada, Bhubaneswar 6. Chief General Manager, Reserve Bank of India, Deptt. Of Non-banking Supervision, Central Office, Centre-1, 2nd Floor, B Wing, World Trade Centre, Cuffe Parade, Colaba, Mumbai 7. Regional Director, Deptt. Of Non-banking Supervision, Mumbai Regional Office, Garment House, 3rd Floor, Dr. Anni Besant Road, Worli, Mumbai ... Opposite Parties For the Complainant : Mr. A. Mohapatra & Associates For the Opp. Parties : Mr. B. Panda & Associates P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT AND SHRI SUBASH MAHTAB, MEMBER O R D E R
DATE:- The 14 August, 2009.
Justice A.K. Samantaray, President.
The In view of the order dated 03.12.2007 passed by the HonbleNational Commission in Revision Petition No.2898 of 2007, this complaint was heard afresh in presence of the learned counsel for the complainant and opposite parties 1 to 3 as well as opposite party no.4. None appeared for opposite parties 5 to 7.
2. The consumer complaint was filed by the complainant alleging unilateral, unfair, unreasonable and arbitrary action of opposite parties 1 to 4. Subsequently, one Judhistira Mohanty, the purchaser of the repossessed vehicle of the complainant, which was sold by opposite party no.3, was impleaded as opposite party no.5 and the Reserve Bank of India and its officials were impleaded as opposite parties 6 and 7.
3. The facts of the case of the complainant are that he is an entrepreneur having his business in the name and style of M/s Utkal Nirman situated at Chandrasekharpur Industrial Estate of Bhubaneswar. Opposite parties 1 and 2 carry on business in Orissa through opposite party no.3-Branch at Bhubaneswar.
The complainant availed a loan of Rs.10,50,000/- on 12.09.2005 from opposite party no.3-Branch for the purpose of purchasing a Model AL-2516 H/3T Ashok Leyland chasis. After due registration, the complainants vehicle (truck) was allowed registration number OR 02 AH 8617. As per the loan agreement, the complainant was required to pay to opposite parties 1 to 3 an amount of Rs.27,075/- on the 12th of each month in 46 instalments beginning from 12.09.2005 and ending on 12.07.2009. The complainant was going on paying the instalments regularly. But, due to unforeseen business loss and expenditure on urgent family needs, he could not pay three instalments of the aforesaid loan due from February, 2007. However, he paid one instalment through bankers cheque on 16.05.2007 of the Indian Overseas Bank, IRC Village Branch. In spite of that, the complainant received telephonic message in the night of 18.05.2007 from the driver of his vehicle that a group of persons numbering about 30 assaulted him and forcibly took away the vehicle from the factory premises of the complainant, i.e., M/s Utkal Nirman situated at Chandrasekharpur Industrial Estate, Bhubaneswar. It is stated in the complaint that at the time of effecting the repossession of the vehicle, no notice was issued to the complainant. After seizure of the vehicle, the complainant received registered A.D. letter from opposite party no.2, purported to be dated 10.05.2007, wherein the complainant had been informed that opposite parties 1 to 3 had recalled the loan facility and called upon the complainant to pay forthwith the entire outstanding balance computed at Rs.7,93,904.54. In he said letter, which was posted on 17.05.2007, it was further indicated that if the complainant failed to pay the entire amount, action for repossession of the vehicle would be initiated. The said letter was received by the complainant long after the actual seizure/repossession of the vehicle. Through another registered A.D. letter dated 25.05.2007 posted on 29.05.2007, opposite party no.2 admitted to have taken possession of the vehicle. In the said letter, opposite party no.2 also called upon the complainant to pay an amount of Rs.7,82,593.14 within seven days of receipt of the letter, failing which the opposite parties would assume that the said non-payment would amount to concurrence to dispose of the vehicle. The complainant thereafter approached opposite parties 1 and 2 several times and offered to pay the loan instalments which he had defaulted in making payment, but opposite parties 1 to 3 were bent upon transferring away/disposing of the complainants vehicle. It is stated that this attitude of opposite parties 1 to 3 including the coercive repossession of the vehicle without notice before recalling the loan arrangement is contrary to the loan agreement and also contrary to the provisions of the Indian Contract Act, 1872. It also amounts to unfair trade practice and deficiency in service as envisaged in the Consumer Protection Act, 1986. In the complaint, it has been stated that for selling of the vehicle by opposite parties 1 to 3, the complainant, who had spent a lot of money in the building of its body, suffered not only mental agony, but also financial loss. He assessed such loss at Rs.29,10,275/- and filed the complaint with a prayer for award of the said amount along with interest at the rate of 9% per annum till the date of payment. He also prayed for award of Rs.50,000/- as cost of the proceeding.
4. Opposite parties 1 to 3 filed written version in pursuance of the notice issued. In the said written version, they raised the question of maintainability of the complaint at the instance of the complainant. It is stated that since the complainant had purchased and used the vehicle (truck) for commercial purpose in furtherance of his business, i.e., M/s Utkal Nirman, of which he is the proprietor, he is not at all a consumer and hence the consumer dispute raised by him is not maintainable. The complaint is further attacked on the ground that there was no deficiency on the part of opposite parties 1 to 3 in the matter of rendering service to the complainant-company and for that also the complaint is not maintainable before this Commission. It is also stated that there is absolutely no cause of action for filing of the complaint. Apart from that, since the matter relates to contractual obligation, the complaint should not be entertained by this Commission. It is stated that since the complainant defaulted in payment of instalments to the tune of Rs.81,886/- as on 19.05.2007, opposite parties 1 to 3 were constrained to seize the vehicle on the said date. After the seizure, on 26.05.2007 the complainant was noticed to deposit the defaulted amount and take back the repossessed vehicle. They have referred to the terms and conditions of the agreement and the consequence of violation thereof and have stated that since the complainant did not respond nor did he make any payment, the vehicle was sold away to one Judhistira Mohanty on 02.08.2007 for Rs.7,50,000/-.
5. We have heard learned counsel for both parties. It was vehemently submitted by the learned counsel for opposite parties 1 to 3 that the complainant is not a consumer as he does not come within the definition of consumer, as envisaged in section2(1)(d) of the Consumer Protection Act, 1986. On a very reading of the complaint, it is found that the complainant has described himself to be an entrepreneur and proprietor of a business concern, namely, M/s Utkal Nirman situated at Chandrasekharpur Industrial Estate, Bhubaneswar.
The vehicle, which was purchased with the finance availed from opposite parties 1 to 3, was solely purchased for expansion of his business concern and not for maintaining his livelihood out of the earnings of the vehicle. Taking us to the complaint petition, learned counsel for opposite parties 1 to 3 further submitted that on going through the entire complaint petition, which runs into 8 pages, there is nowhere any averment that the vehicle was purchased for maintaining the livelihood of the complainant. Rather, there is mention in para-4 that the instalments could not be paid regularly due to unforeseen business loss and expenditure on urgent family needs. In this connection, learned counsel referred to a decision of the Honble Supreme Court in Laxmi Engineering Works v- P.S.G. Industrial Institute, AIR 1995 SC 1428, wherein a similar question as to whether or not the complainant was a consumer was raised. The Apex Court in that case observed that a person who buys goods and uses the same himself exclusively for the purpose of earning livelihood by means of self-employment is within the definition of the expression consumer. Considering the nature and character of machine goods, which the complainant purchased for use by himself not exclusively for the purpose of earning his livelihood by means of self-employment but for commercial purpose, the Apex Court held that the complainant cannot be regarded to be a consumer. He also referred to the decision of the Honble National Commission in Sheela Kumari v- Tata Engineering & Locomotive Company & others, 2007 NCJ 570, wherein it has been held that when a vehicle is repossessed for default of payment of instalments in breach of terms of hire purchase agreement, such repossession cannot be construed as deficiency in service. Further reference was made to the decision of the Kerala State Consumer Disputes Redressal Comission in the case of Sreeja Finance v- Saumini and Another, 2008(1) CPR 128, wherein the said Commission had relied on the decision of the Honble National Commission in Manager, St. Arys Hire Purchase (P) Ltd. v- N.A. Jose, III 1995 CPJ 58 (NC). The National Commission in the aforesaid decision had held that the hirer (complainant) held the vehicle as a bailee of the owner and was not to have any proprietory right or interest as purchaser and, as per law on the subject, it cannot be said that the complainant had hired the services of the Financing Company for all within the purview of consumer as defined in the Consumer Protection Act. Learned counsel also drew our attention to another decision of the Honble National Commission in Ram Deshlahara v- Magma Leasing Ltd., III(2006) CPJ 247 (NC), wherein it was observed that under a hire purchase transaction, the financier does not render any service within the meaning of Consumer Protection Act.
6. This being the position of law and learned counsel for the complainant not being able to overcome the points put forth, in our considered view, the complainant is not covered under the expression consumer and opposite parties 1 to 3 are not service providers as defined in the Consumer Protection Act. The Consumer Complaint filed by the complainant is wholly misconceived and cannot be maintained in this Commission.
7. In the result, therefore, we dismiss the Consumer Complaint as not maintainable in both law and fact.
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(Justice A.K. Samantaray) President ........
(Subash Mahtab) Member SCDRC, Orissa, Cuttack August , 2009/Nayak