State Consumer Disputes Redressal Commission
R.V.Ramgopal S/O.R.Jaganmohan Rao ... vs Shriram Transport Finance Company ... on 29 January, 2013
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No.912/2011 against I.A.No.182/2011 in C.C.No.167/2010 District Forum-II, Krishna at Vijayawada. Between R.V.Ramgopal S/o.R.Jaganmohan Rao Aged 41 years, R/o.BHEL MIG/607, Ramachandrapuram, Serilingampally, Hyderabad, Occ:Transport Business. ..Appellant/ Complainant And Shriram Transport Finance Company Limited, Door No.76-8-1, 2nd floor, Opp:Swathi Theatre, Bhavanipuram, Vijayawada, rep. by its Manager. Respondent/ opposite party F.A.No.913/2011 against I.A.No.184/2011 in C.C.No.165/2010 District Forum-II, Krishna at Vijayawada. Between R.V.Ramgopal S/o.R.Jaganmohan Rao Aged 41 years, R/o.BHEL MIG/607, Ramachandrapuram, Serilingampally, Hyderabad, Occ:Transport Business. ..Appellant/ Complainant And Shriram Transport Finance Company Limited, Door No.76-8-1, 2nd floor, Opp:Swathi Theatre, Bhavanipuram, Vijayawada, rep. by its Manager. Respondent/ opposite party F.A.No.916/2011 against I.A.No.183/2011 in C.C.No.166/2010 District Forum-II, Krishna at Vijayawada. Between R.V.Ramgopal S/o.R.Jaganmohan Rao Aged 41 years, R/o.BHEL MIG/007, Ramachandrapuram, Serilingampally, Hyderabad, Occ:Transport Business. ..Appellant/ Complainant And Shriram Transport Finance Company Limited, Door No.76-8-1, 2nd floor, Opp:Swathi Theatre, Bhavanipuram, Vijayawada, rep. by its Manager. Respondent/ opposite party Counsel for the Appellant : M/s Rakesh Sanghi (common in all appeals) Counsel for the Respondent : Mr.M.V.R.Suresh. (common in all appeals) QUORUM: SMT.M.SHREESHA, HONBLE Incharge President AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
TUESDAY, THE TWENTY NINTH DAY OF January, TWO THOUSAND THIRTEEN Order (Per Smt.M.Shreesha, Honble Incharge President) *** Since all these appeals deal with similar facts, they are being disposed of by a common order.
F.A.No.912/2011:
Aggrieved by the order in I.A.No.182/2011 in C.C.No.167/2010 on the file of District Forum-II, Vijayawada, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant applied for a vehicle loan of Rs.9,23,000/- and was sanctioned the same by opposite party on 22-11-2004 and was informed that the interest being levied on the said loan would be 5.13% p.a. The said vehicle loan account was subsequently re-scheduled vide fresh agreement dated 16-3-2009 on an enhanced interest rate of 9% pa. for payment of few overdue instalments. The complainant submitted that he was compelled to avail personal loan of Rs.1,00,000/- @ 24% p.a. in April, 2010. The complainant submitted that the opposite party has not paid a single rupee out of the aforesaid amount of Rs.6,00,000/- to the complainant herein on the complainant having signed the re-scheduled agreement or personal loan agreement and therefore prayed that the opposite party be directed to produce its cash book and audited books and Bank statements including the details of instalments in the manner as mandated under Section 26988 of Income Tax Act, 1961. The complainant submitted that he hypothecated the Truck under a fully secured loan and the principal amount of Rs.9,23,000/- was disbursed by the opposite party to him on 22-11-2004 and thereby the opposite party was entitled to collect interest thereon at 5.13% p.a. on diminishing balance method. The complainant submitted that when he critically analysed the factual interest being charged by opposite party under various innocuous prefixes amounting to a total of around 3% to 4% per month totalling to around 40% per annum was grossly usurious and excessive and therefore violative of provisions contained in the Usurious Loans Act, 1918.
The complainant submitted that after having analysed the entire transaction, the contractual interest Per-se was superficially described as being 5.70% p.a. rescheduled to 9% p.a. and are being debited to the customers/loanees account as follows:
i) Hire charges
ii) Documentation and processing charges/agreement charges
iii) A/c statement charges @ Rs.500/- per statement
iv) Cheque bouncing charges amounting to 10% of the value of the dishonoured instrument
v) Swap charges
vi) Foreclosure charges
vii) Miscellaneous and other charges under various other innocuous and deceptive prefixes
viii) Compounding of interest on monthly basis @ 3% p.a. by giving the same a nomenclature of overdue charges.
The complainant further submitted that in violation of settled principles of law which mandates that any payment should first be appropriated towards principal amount and then towards interest or payment should alteast be adjusted towards a harmonious amalgam of the principle and interest component but the opposite party is adjusting all the earlier instalment of E.M.Is towards payment of interest component alone for the complete loan period of 10 years in advance within 3 years and adjusting the subsequent instalments of EMI towards payment of principle component and the front end method of calculating interest component is illegal and the complainant cannot be compelled to pay the interest component on the principle sum for the balance eight years of loan. The complainant submitted that he has been regularly paying equated monthly instalments of Rs.21,350/- per month since 2004 for the last five years and had totally paid 72 instalments totalling to Rs.15,00,000/-
and the opposite party is still claiming an amount of Rs.4,66,542/- due and payable by the complainant. The complainant submitted that the opposite party is justifying the interest rates by claiming that the agreement for vehicle finance is factually a hire purchase transaction and therefore opposite party is at liberty to fix its own hire charges and that fixation of Hire charges being a contract between willing parties, cannot be questioned. The complainant submitted that the Hire Purchase agreement is nothing but a loan transaction and that he himself was registered as owner of the vehicle as per the RC book and the vehicle is merely hypothecated to the opposite party herein for securing repayment of the loan amount and prefix of Hire Purchase transaction is false.
The complainant submitted that the equated monthly instalments being paid by him are not hire charges but are factually repayment of loan amount and the entire transaction is a loan transaction camouflaged as Hire purchase transaction to enable the opposite party to justify its charging of various interest and the said practice is deceptive and relied on the judgement reported in AIR 2004 SC P 2615. The internal rate of return being posted in the books of the opposite party towards interest is violative of the provisions contained in Usurious Loans Act, 1918 and also a fact exclusively within the knowledge of opposite party herein as per the provisions contained in Section 106 of Indian Evidence Act, 1872 and the burden of providing the same lies exclusively upon the opposite party as per ratio of the judgement reported in AIR 1917 Privy Council etc., The complainant submitted that the vehicle loan agreement and its annexures constitute the printed stationary of the opposite party and the loanees have virtually no say in the matter except sign the blank documents and therefore the agreement is virtually a standard form of contract and in the event of any terms and contracts being found to be illegal as contemplated under Section 23 of the Indian Contract Act, 1872, the said objectionable clauses shall be struck down by the Forum as per judgement of apex court in AIR 1975 SC P 1811 and AIR 1986 SC P1571.
The complainant further submitted that the opposite party is motivated solely for the profit factor and in utter disregard to fair trade practice, might have incorporated certain clauses in fine print in the parent contract where under the opposite party can claim and levy miscellaneous charges. The complainant submitted that at any rate, none of the provisions contained in the Loan Agreement or any other document executed by the complainant under the aforesaid circumstances can permit the opposite party to charge interest excess of the limits prescribed by the provisions contained in the Usurious Loans Act, 1918 and if the opposite partys loan agreement is permitted to prevail it would defeat the provisions contained in the Usurious Loans Act and therefore illegal and void. The complainant further submitted that the opposite party is not a Banking company and the exemption afforded to Banking Companies from the provisions contained in Usurious Loan Act, 1918 U/s.21 A of Banking regulation Act, 1949 is not available to opposite party and the provisions contained in Usurious Loans Act, 1918 mutatis mutandis applies to the finance business of the opposite party and the charging provisions contained in Section 2 of the said Act does not provide any exemption to Loans issued by companies incorporated under the Indian Companies Act, 1956 and there is no scope for applying the concept of CASSUS OMMISUS by granting an unwarranted and non existent exemption to the opposite party from the provisions contained in Usurious Loans Act, 1918.
The complainant submitted that he wanted to analyse the entire transaction, he called the opposite party to furnish him the documents comprising of application for vehicle loan and agreement along with all related documents which had been signed by him at the inception for grant of the aforesaid vehicle loan as the same do not appear to have been furnished at the time of execution and the opposite party refused to furnish the said copies and therefore the complainant offered to foreclose the loan and wanted to pay the entire outstanding amount. Pursuant to which the opposite party without issuing any statement of account, orally informed the complainant that the complainant has to still repay Rs.4,66,542/- towards the outstanding loan amount and foreclosure charges despite the complainant having already repaid an amount of Rs.15,00,000/- towards repayment of total loan amount of Rs.9,23,000/-. The complainant submitted that he was being robbed by the opposite party finance company and therefore demanded the opposite party to disclose its internal rate of returns and refused to settle the amount unless and until the issue was settled by the opposite party furnishing a comprehensive statement of accounts showing in detail, the principle component and the interest component in the manner as reported in AIR 2001 SC P 3095.
The complainant submitted that the opposite party cannot be permitted to urge that the provisions contained in Usurious Loans Act, 1918 will come into operation only if the opposite party institutes a civil suit as contemplated under Section 3 of the said Act for recovery of the loan amount and interest thereon and the benefits of the provisions contained in Usurious Loans Act, 1918 should be so interpreted so as to permit the Loanee also to maintain an independent suit or consumer complaint for claiming the benefit of the provisions contained in the Usurious Loans Act, 1918. The complainant submitted that in order to avoid an enquiry relating to rate of interest under the Usurious Loans Act, 1918, the opposite party would never institute a civil suit but would simply retain the Hypothecation illegally and keep the demand of the usurious interest rate till the customer comes and surrenders to the illegal demands of the opposite party for releasing the vehicle. The complainant submitted that the law show meet the long felt necessity for protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory and various legislations and regulations permit the State to intervene and protect interest of the consumers.
The complainant submitted that the opposite party is resorting to yet another pernicious mercantile practice of collecting blank cheques from its loanees at the inception of the transaction despite the ECGS bank clearing and virtually no acknowledgement is issued qua the aforesaid blank cheques are retained and when loanee subsequently raises any dispute or commits any breach of terms and conditions by refusing to pay usurious interest, the staff of the opposite party fills up the aforesaid blank cheques by writing the date and comprehensive amount as unilaterally and illegally claimed and presents the same for clearance by taking a specious stand that the loanee recently issued the said cheques towards discharge of alleged liability and counter claims of the loanee are swept and threat of penal prosecution of Negotiable Instruments Act, 1881 are raised as the said cheques are dishonoured upon presentation. The complainant submitted that a holistic examination of the entire sequence of events and the entire transaction leads to irresistible conclusion of unfair trade practice and restrictive trade practice being committed by the opposite party and relies on the judgements of the Apex court reported in AIR 2004 sc at page 184. The complainant submitted that the subject complaint is not complicated or complex as to be beyond the comprehension and on the other hand will be resolved by examining the chartered Accountant and other financial experts and relied on decision reported in AIR 2002 SC at page 2931. The complainant submitted that he is a self employed entrepreneur having obtained vehicle loan for operation of his micro transport business and not a commercial transaction and submitted that usurious interest is being illegally charged by the opposite party herein in violation of Usurious Loans Act, 1918. Hence the complaint for a direction to the opposite party to create a corpus for refund the excess interest amount and interest tax collected in accordance with the provisions contained in Section 14(hb) of the Consumer Protection Act, 1986 and award costs.
Opposite party filed written version resisting the complaint.
It submitted that the complaint is not filed according to the provisions of Consumer Protection Act, 1986 and the grounds mentioned by the complainant are also barred under Section 62 of the Indian Contract Act and hence the complaint may be dismissed. It submitted that the complainant is not a consumer as defined within the meaning and Section 2(d) of the Consumer Protection Act, 1986. The complainant is a fleet owner having 3 vehicles on his name and admittedly doing transport business and earning huge profits and running the vehicles by engaging drivers, cleaners which proves that he is doing commercial transaction for earning profits and as such the complaint is liable to be rejected. It submitted that the complainant filed 3 separate complaints before the opposite party for the same cause of action. It submitted that the complaint is not maintainable because the complainant has no locus standi to represent the causes of others and further the said complaint is not a public interest litigation and the Forum has no jurisdiction to entertain the cases. It submitted that it is doing its business as per regulations and guidelines of Reserve Bank of India and to do the business under Hire Purchase, all finance companies should get the License from Reserve Bank of India and the opposite party has also obtained such license. Opposite party also submitted that the complaint is not maintainable on the ground of mis-joinder and non-joinder of proper and necessary parties and the complainant originally entered agreements with M/s Citi Corp Finance India Limited and M/s UTI Bank Limited and obtained finance towards purchasing 3 new TATA 2515 EX Model lorries to do transport business in the year 2004 and therefore non joinder of financiers is fatal to his complaint. Opposite party also submitted that the present complaints are not maintainable as per Law of Limitation because the complainant entered into agreements with the above said institutions in the year 2004 and subsequently those agreements were terminated at the request of the complainant and now the complaint is agitating for getting relief through earlier agreements and filed the complaints in the month of July, 2010 and thus are barred by limitation. The opposite party submits that the relationship between the opposite party and the complainant is that of debtor and creditor and the Forum has no jurisdiction to decide the question of reducing the rate of interest etc. and therefore the complaint is liable to be dismissed in limini. Opposite party submitted that the complaint is also not maintainable on the ground that if there is any breach of terms and conditions of Hire Purchase agreement, the complainant has to approach the civil court and failed to prove any deficiency in service committed by the opposite party. Opposite party further submitted that the complaint cannot be adjudicated in a summary procedure and needs full fledged trial by adducing evidence and therefore the option available for the complainant is to approach civil court and even as per the terms and conditions of the agreement, if any dispute arises between the complainant and the opposite party, the same shall be referred to the sole Arbitrator and the matter should be settled as per Arbitration & Conciliation Act, 1996.
Opposite party further submitted that the complaint relied upon the applicability of Usurious Loans Act, 1918 and the applicability of the said Act is for not for the complainant who is doing transport business and therefore the civil court alone has jurisdiction.
It denied the allegations made the complaint and submitted that there is no unfair trade practice as alleged by the complainant.
It denied the allegation that the complainant is a self employed entrepreneur and submitted that the complainant is doing transport business with a motive to earn profits and has filed two others complaints for the same cause of action and hence admittedly the complainant is having 3 vehicles and using for his transport business and hence the complaints are not maintainable.
Opposite party submitted that the complainant approached it in year 2004 and expressed his interest to purchase 3 new TATA 2515 Ex Model lorries to do transport business by obtaining loan from M/s UTI Bank Ltd. and M/s.Citi Corp Finance Ltd., and requested it to arrange loans and accordingly this opposite party which is having tie up with M/s. UTI Bank and M/s Citi Corp. Finance has see that the loans were sanctioned to the complainant for purchasing the lorries and the complainant executed agreements for the above vehicles under Hypothecation of the said vehicles. Opposite party further submitted that at the request of the complainant, it had finance to the complainant for the above said vehicles on 30-6-2008, and 20-3-2009 for improving his transport business under different agreements executed in its favour and the complainant has also made the endorsement of the above vehicles in favour of the opposite party in RC books evidencing that the vehicles are in finance with it and the complainant has agreed to abide by the terms and conditions and has acknowledged receipt of copies of all the relevant documents.
Opposite party submitted that they never rescheduled the loan accounts of the complainant but had given finance for his 3 vehicles on 30-6-2008 and 20-3-2009 as stated supra under different agreements and the institutions who granted earlier loan can only reschedule the loan at the request of the party but the complainant is creating a new story and wrongly representing that those agreements were still in existence and they were again rescheduled by it. Opposite party further submitted that it is barred under Indian Contract Act that once an agreement is closed and new agreement is created then the old agreement terms and conditions will not come into picture and even the RC copies of vehicles filed by the complainant along with the complaint clearly show that the above vehicles are in favour of the opposite party after closing the agreements with M/s.UTI Bank and Citi Corp Finance India Limited but the complainant has filed the complaints based on old agreements which are not at all in existence. Opposite party submitted that at the request of the complainant, it extended financial assistance to his 3 vehicles and the complainant has taken finance of Rs.6,25,000/- for vehicle No.AP16TU 7839 and agreed to repay the said amount with interest @ 12.20% in 39 instalments @ Rs.22,380 for first 38 instalments and remaining last instalment at Rs.22,372 making the total agreement value of Rs.8,72,812/- and accordingly executed the agreement along with the guarantor on 30-6-2008 and agreed to abide by the terms and conditions of the agreement. Opposite party further submitted that they extended financial assistance to the complainant for his other 2 vehicles to a tune of Rs.5,00,000/- each at the request of the complainant and he agreed to repay the said amount with interest @ 9.72% p.a. in 33 instalments being Rs.19,210/- for the first 32 instalments and the last instalment being Rs.18,958/- making total agreement value of Rs.6,33,678/- and executed agreements along with guarantor on 20-3-2009. Opposite party submitted that the prayer of the complainant for directing the opposite party to create a corpus for refunding the excess interest amount from the loanees including the complaint do not fall within the ambit of Consumer Protection Act, 1986 and is one of Public Interest Litigation and the complainant has no locus standi to represent others and submitted that they have never collected excess rate of interest than that of terms of agreements and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
The opposite party filed a petition U/s.12(3) of Consumer Protection Act, 1986 read with Order XII, Rule VI, Order VII Rule XI and U/s.151 CPC praying to dismiss the complaint on the ground of lack of jurisdiction. The opposite party stated that the complainant filed the complaint for rendition of accounts with false and untenable allegations and the complainant is not a consumer as the complainant is doing business by purchasing vehicles and the complaint may be dismissed. The opposite party also stated that the complainant purchased three vehicles and has not furnished the details with regard to maintenance of vehicles.
The respondent/complainant filed counter contending that the mere filing of photocopy of complaint is not sufficient and that the petitioner has to file certified copy and owning several vehicles do not come under the purview of commercial transaction.
Based on the pleadings put forward in I.A. the District Forum dismissed the I.A. as well as the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The learned counsel for the appellant/complainant contended that the District Forum had wrongly dismissed the complaint at the S.R. stage on the ground of jurisdiction and that the transaction between the complainant and the opposite party is commercial and amounts to breach of terms for which civil court alone is competent to decide. The District Forum has also observed that the complainant filed the complaint before the Honble Competition Commission of India and mentioned about the lack of jurisdiction of consumer Forum and therefore keeping in view all the prayers of the complainant, the District Forum observed that it does not have jurisdiction to entertain the compliant.
The brief points that fall for consideration here is
i) whether the complaint is a consumer falling within the deficiency of Sec.2(1)(d) of the Consumer Protection Act, 1986?
ii) whether the directions sought for by the appellant/complainant with respect to creating a corpus for refunding the excess interest, invoking the provisions contained in Section 3 of Usurious Loans Act by reopening the vehicles loan transaction and directing the opposite parties to disclose the actual rate of interest substantiating each and every entry in the audit books as per the ratio of the judgements in AIR 1967 SC Page 1058 and 1990, can be adjudicated by the consumer Fora?
iii) Whether the opposite partys right to seize the lorry is justifiable?
1. It is the appellant/complainants case that he is a self-employed person and nothing prevents a self-employed person to operate three lorries and that merely because he has purchased these lorries and stated in his complaint that he is doing transport business, it should not be construed that it is for commercial purpose. We rely on the judgement of the Apex Court in Birla Technologies Ltd., v. Neutral Glass and Allied Industries Ltd., reported in CDJ 2010-SC 1177 wherein the Supreme Court held as follows:
that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. On the one count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobodys case that the goods bought and used by the respondent herein and services availed by the respondent were exclusively for the purpose of earning the respondents livelihood by means of self employment.
In that view, it will have to be held that the complaint itself was not maintainable in toto.
Even in the instant case, the purchase of lorries is only for earning extra profits even if they have been taken on hire purchase and admittedly the complainant has taken these lorries on finance for improving his transport business which falls under the definition of commercial transaction and cannot be termed as a consumer as defined under Section 2(1)(d) of the Consumer Protection Act.
2. It is the appellant/complainants case that the opposite party is indulging in unfair trade practice by not following the diminishing balance method of accounting though the principal amount of Rs.9,23,000/- was disbursed by the opposite party to the complainant on 22-11-2004 at 5.13% p.a., the interest rates being charged is much higher and is violative of the Usurious Loans Act. The opposite party is charging higher charges, documentation and processing charges, account statement charges at Rs.500/- per statement, cheque bouncing charges at 10% of the value, SWAP charges, foreclosure charges, miscellaneous charges and compounding interest at 3% p.a. calling it overdue charges and therefore the complainant submits that opposite party is not revealing the actual interest rate and is not adjusting the EMIs paid by the complainant towards the payment of principal component and the front end of calculating the interest is unfair. The complainant is paying EMIs of Rs.21,350/- per month since the year 2004 and totally paid around Rs.15,00,000/- and still the opposite party is claiming an amount of Rs.4,66,542/- for foreclosing the loan account. The learned counsel for the appellant submits that the entire transaction is a loan transaction and is camouflaged as a hire purchase transaction and submits that the internal rate of return being posted in the books of account should be as per the provisions contained in Section 106 of Indian Evidence Act. He further contended that the said agreement is a standard form contract and the complainant was made to sign blank documents and therefore certain clauses have to be struck down.
The aforementioned contention of the appellant with respect to the interest rates being charged by the opposite party on diminishing balance method and invoking Section 3 of Usurious Loans Act and also seeking for cancellation of certain clauses of the contract do not fall within the purview of the Consumer Protection Act, 1986.
The contention of the appellant/complainant that the complaint is not complicated and that the issue will be resolved by examining the chartered accountant and other financial experts who will unravel the jugglery of figures also does not fall within the purview of this Act. The nature of issues involved in the dispute are complex and complicated which is not envisaged in this Consumer protection Act which calls for summary disposal of the cases with respect to deficiency in service.
It is not in dispute that the appellant/complainant approached the Competition Commission of India and filed a complaint seeking the following directions It is therefore prayed that this Honble Commission may be pleased to invoke the provisions contained in the Competition Act, 2002 and call for the entire record of the Respondents including the books and book entries connected to the Three (3) Lorry Finance transactions of the complainant herein for determining the term and tenure of the loan transactions and also for determining the actual interest rate a.k.a. the Internal Rate of Return being charged and conceptualised by the Respondents qua the complainants loan transactions and consequently, examine the said loan transactions in the light of the contracted rate of interest and the provisions contained in the Usurious Loans Act, 1918 for determining the rate of interest a.k.a. the internal rate of return being charged by the Respondents herein, and also be pleased to examine the vires of the Loan Agreement for determining as to whether the various clauses including the clause Nos. 6 & 7 permitting the Respondents to Seize the Hypothecated Lorries from the helpless loanee on account of his failure to pay the exorbitant amounts are opposed to public policy and the law prevailing and consequently, be pleased to penalise the Respondents accordingly, and be pleased to such further or, other orders as the Honble Commission may deem fit and proper in the circumstances of the case.
It is apparent that the directions prayed for in the Competition Commission of India and also before the District Forum are similar.
In the instant case, it is the case of the appellant/complainant that the opposite party is charging hidden costs and charging interest rates at an abnormal rate against the terms of agreement, which is not established by any documentary evidence and also the opposite party have demanded him to pay due of Rs.4,66,542/-.
3. Whether the opposite partys right to seize the lorry is justified?
We rely on the decision of the Apex court in Suryapal Singh v. Siddha Vinayak Motors & anr. Reported in III (2012) CPJ 4 SC wherein the apex court held as follows:
Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier.
The Court vide its judgmenet in Trilok Singh and Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is the real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A.Mathai@ Babu @ Anr. v. Kora Bibbikutty @ Anr. 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K.Saraf, IX (1998) SLT 477-IV (1998) CCR 118 (SC)-1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. Sudhir Mehra, VI (2001) SLT 883-III (2001) CCR 232 (SC)-2001 (7) SCC 417, following the earlier judgement of this court in Sundaram Finance Ltd., v. the State of Kerala and Anr. AIR 1966 SC 1178; Smt.Lalmuni Devi V. State of Bihar and Ors., I (2001) SLT26-1 (2001) CCR 9(SC)-2001 (2) SCC 17 and Balwinder Singh v. Assistant Commissioner V (20050 SLT 195-III (2005) CCR 8 (SC)-CCE 2005(4) SCC 146.
The National commission in Surendra Kumar Agarwal V. Telco Finance Ltd. and another reported in II(2010) CPJ 163 NC dated 11-3-2010, held as follows:
It is not disputed before is that the petitioner had raised a loan of Rs.6,15,000/- to purchase the truck. No statement of account showing repaying of loan instalments has been filed by the petitioner. It was admitted before the State Commission that the petitioner had defaulted several times in making the payment on the dates when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorised to repossess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance ( India) Ltd., Case (Supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission It is the case of the respondent/opposite party that they have every right to seize the vehicle financed by them as the complainant has become a defaulter in payment of the instalments and they have also issued a notice as per the terms and conditions of the agreement. We find force in the contention of the respondent company as stated in their written arguments, that they have every right over the financed asset and they have repossessed the vehicle only because the complainant did not pay his dues.
With respect to the other prayers of the complainant, Keeping in view the aforementioned decisions, we are of the considered view that the directions sought for by the appellant/.complainant do not fall within the ambit of Selection 2(1)(d) and Section 2(1)(o) of the Consumer Protection Act, 1986 and therefore cannot be termed as a consumer dispute. However, the complainant is at liberty to approach the Civil Court and seek exclusion of time spent before Fora under Section 14, Limitation Act.
In the result we do not see any grounds to interfere with the well-considered order of the District Forum and this appeal fails and is accordingly dismissed.
F.A.Nos.913/2011 and 916/2011:
For the same reasons as stated in F.A.No.912/2011, these appeals also fail and they are accordingly dismissed.
Sd/-Incharge President.
Sd/- Member.
JM Dt. 29-1-2013.