ORDER

REASONS Points 1 to 3 Purchasing of a three wheeler mini door pick up van bearing no KA25 B3204 by the complainant by rising loan from respondent-2 in the year 2005 is not in dispute.

As per the complainant inspite of discharging the entire loan only to harass him the respondents have taken away that vehicle along with goods and sold it for higher price which has caused mental agony to him. On what date and at what time that vehicle was taken away by the respondents, no details are given. Whether complainant was present then, nothing is stated. Whether any other persons were present then, nothing is stated. What goods were in it, not stated. The complainant has got filed an affidavit of one Ramesh Hanumappa Shirasangi and that deponent has stated that, the respondents have taken away the van of complainant in the month of December 2007 and it has come to his knowledge.

The month and year not stated by the complainant has been stated by this deponent. Moreover from his affidavit whether he was actually present when respondents took away that vehicle, has not been clearly stated. Mere knowledge is not sufficient. The entire loan transaction and execution of loan cum hypothecation agreement have taken place at Gadag. Whether at least any part of cause of action arose to complainant within the territorial jurisdiction of this forum, nothing is stated. Mere residence of complainant within the territorial jurisdiction of this forum, does not create cause of action to complainant to file complaint in this forum. Complaint should have been filed before the Consumer Forum, Gadag but it is filed in this forum. As such even on jurisdiction point, this forum has not territorial jurisdiction to entertain the complaint.

Complainant has produced certain receipts for having repaid the loan amount. If those receipts are perused at the most speak that around Rs.1 lakh has been paid to respondents. the loan taken by complainant is around Rs.2 lakhs and if interest is added it will be more than Rs.2 lakhs. Even payments made by the complainant some times it is less than the installment amount & some times more.

Regular payments have not been made correctly. For non payment of the loan amount regularly and timely respondent-2 being a financier has right as per clause 6 of the Agreement to seize and sell that vehicle for recovery of its loan amount. Even complainant has not produced any material to state in whose favour that vehicle was sold in auction, and for what quantum and on which date.
Whether any mahajar was prepared at that time, nothing is stated. Bare pleading and evidence of complainant cannot be accepted. Respondents have produced some letters to state that they were written to complainant asking him to pay the balance amount. It is not disputed by the complainant. On jurisdiction and non maintainability of the complaint some rulings have been relied on for respondents. In 1993 (1) CPR 392 Orissa, wherein it is held that, when a truck was purchased for transport business it is commercial in nature, so complainant is not consumer. As per 1995 (3) CPR 93 Karnataka State Consumer Disputes Redressal Commission, wherein it is held that, where relation between complainant and opponent is of that borrower and creditor, complainant cannot be said to be a consumer in respect of loan transaction and cannot maintain complaint before consumer forum. In 1992 (1) CPR 456 Hyderabad, it is held that seizure of a tractor by a bank in accordance with terms & conditions of loan, on failure of loanee/complainant to repay the installment of loan does not amount to deficiency in service. In 1995 (3) CPR 293 NCDRC wherein their lordships have held that, exercise of right under the hire purchase agreement cannot be construed as a deficiency in service. In 2004 (2) CPR 584 Tamilnadu, it is held that, where financier repossessed vehicle under hire purchase agreement strictly in accordance with terms & conditions of agreement, consumer complaint for deficiency in service could not be maintainable. Contrary is not proved by the complainant.

Moreover, complainant has not availed service of respondents by paying consideration to become a consumer under CP Act. In view of all these reasons, on jurisdiction point as well as on merits the complaint is liable to be dismissed. Hence, points 1 to 3 are answered in Negative and proceeded to pass the following

O R D E R

The complaint is dismissed. However the parties are left with their own costs. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 13th March 2009)