West Bengal

Birbhum

CC/13/93

Sasticharan Mondal, S/o N.Ch. Mondal, - Complainant(s)

Versus

1) Manager, L AND T Finance Ltd. - Opp.Party(s)

Sanjit Acharya

26 May 2015

ORDER

The instant case has been filed U/s 12 of the C.P. Act, 1986 on 30.07.2013 by the complainant against the O.Ps praying for injunction and for some directions upon the O.Ps.

Briefly stated, the case of the complainant is that the complainant purchased a tractor from the O.P No.3, the dealer by taking loan from the O.P No. 1 and 2, the Financers for self  employment. The complainant paid most of the repayment installments against the loan taken. But the complainant failed to pay some repayment installments due to his economic distress. Subsequently, the complainant attempted to repay the total dues amount at a time. But the O.P No. 1 and 2, the Financers claimed more than the actual dues. Such excessive claim is against the RBI norms. Moreover, the O.P No. 1 and 2 by serving a legal notice upon the complainant on 20.03.2013 demanded a sum of ₹ 60,930 plus 36% interest p.a. with a warning that in case of default they would take the possession of the vehicle in question. Such acts and activities of the O.P No. 1 and 2 amount to deficiency in service. As such, the complainant has filed ths instant case. This is, in short, the case of the complainant.

The O.P No. 1 and 3 have filed separate written versions and thereby they have denied almost all the material allegations and averments made in the petition of complaint.

The positive defence case is that the instant case is not maintainable in law. The instant case is bad for non joinder of necessary party. The complainant purchased the tractor in question exclusively for commercial purpose i.e. for cultivating the land of other person. The complainant purchased the tractor in question by taking loan from the O.P No.1. The complainant neglected and failed to repay the loan. The complainant being a defaulter is not entitled to get any relief in this case. There is no deficiency in service on the part of the O.P No.1, as such the instant complaint is liable to be dismissed with cost.

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Points for determination:

1. Is the instant case maintainable in law?
2. Is the instant case bad for non joinder of necessary party?
3. Has the complainant purchased a tractor in question exclusively for self-employment?
4. Is there any deficiency in service on the part of the O.Ps?
5. Is the complainant entitled to get relief/reliefs as prayed for?

FINDING WITH REASONS

Points No. 2): It appears from the case record that the complainant filed this case on 30.07.2013 against the four opposite parties praying reliefs against the said four opposite parties. It further appears from the case record that on 03.03.2014 on the prayer of the complainant names of the O.P No. 2 and 4 were expunged from the petition of complaint. But they are necessary parties in this case because the complainant has claimed some relief / reliefs against them in this case. Therefore, in their absence no effective order can be passed in this particular case. In such a position we are of the view the instant case is bad for non joinder of necessary parties. Accordingly point No. 2 is decided against the complainant.

Points No. 1), 3), 4) and 5): These four points are taken up together for consideration for the sake of brevity and convince of discussion.

            On careful perusal of the case record we find that complainant purchased tractor in question from O.P No. 3, the dealer on finance provided by O.P No. 1 and 2, Finance Company and parties entered into loan cum hypotheticated agreement and this amount was to be paid by the complainant in installments. But complainant failed to pay some installments. As such, the O.P No. 1, the Finance Company served demand notice upon the complainant with a specific warning. It is the case of the complainant that the Financers charged more interest that it was agreed between the parties. But the complainant has failed to prove that the Financers demanded interest beyond the terms and condition of the loan cum hypotheticate agreement. Even the complainant has not filed before this Forum the notice which he received from the Financers to prove his case of excessive demand. It may be mentioned here that RBI norms are not applicable to the O.P No. 1 and 2, Finance Company.

            It appears from the copy of R.C of the tractor in question that the tractor was purchased for commercial purpose. But it is the case of the complainant that he purchased the same for self-employment. Now, we have to consider how far the complainant has been able to prove his plea of self-employment. Because onus lies upon the complainant to prove such fact. The complainant has not specifically stated that he himself drives the tractor for self-employment. Admittedly, the tractor in question is being used with the help of some outsiders and no other member of his family is connected with the use of such tractor. Even the complainant has not filed any driving license for driving the vehicle in question in order to prove his story of self-employment. The complainant has stated that he has no other source of income. But his application for taking loan for purchasing the tractor in question goes to show that he had annual income of ₹ 3,00,000/- from agriculture before taking loan for purchasing the tractor in question. Therefore, it is clear the complainant has suppressed such fact. Moreover, the complainant has​ not adduced any corroborative evidence to prove his plea of self-employment. In such a position, no reliance can be placed upon the uncorroborated testimony of the complaint on the point of self-employment. Rather, it has been proved from the materials on record that the complainant has purchased the tractor in question by taking loan on hire purchase basis for using the same exclusively for commercial purpose with the help of outsiders.

            From the materials on case record in this case it cannot be held that the loan was obtained by the complainant to purchase the tractor exclusively for the purpose of earning his livelihood by means of self-employment. It has also been proved from the materials on record that the complainant obtained loan and purchased the tractor in question on hire purchase basis exclusively for commercial purpose and not for the purposes of earning his livelihood by means of self-employment. Therefore, the complainant does not come under the purview of the definition of ‘consumer’ as per C.P. Act.

Under the circumstances we are of the view that the instant case is not maintainable in law.

Admittedly, the O.P No. 1 and 2 are the financers. Admittedly, the complainant is defaulter in repayment of loan. It is held by the Hon’ble National Commission reported in 2013(1) C.P.R 351 that Financer can repossess vehicle in case of default in repayment of loan. Therefore, being Financers the O.P No. 1 and 2 did not commit any wrong to serve demand notice upon the complainant for repayment of loan i/d repossession of the vehicle. The complainant has also failed to prove that by demand notice the Financers have claimed excessive amount or charged more interest than it was agreed between the parties. Being a defaulter the complainant is not entitled to get any relief in this case. Because he has not come before this Forum with clean hand. It further appears that the complainant has filed this case for permanent injunction. Such type of case cannot be entertained in this Forum because this Forum is unable to pass any order of injunction in permanent nature. We also find no deficiency in service on the part of the O.Ps.

Having considered the facts and circumstances of the case, evidence, other materials on record and in the light of our discussion made above, we are of considered view that the instant case is not maintainable in law and the complainant is not entitled to get any relief in this case. Accordingly, the instant case is liable to be dismissed. Points No. 1), 3),4) and 5) are accordingly disposed of.

In the result, the instant case fails.

Proper fees have been paid.

Hence, it is

O R D E R E D

that C.F case No. 93/2013 be and the same is dismissed on contest against the O.Ps.  Having considered the facts and circumstances of case, we make no order as to cost.

Let copies of the order be supplied to the parties free of cost under provision of Order 5 Rule 10 of the W.B C.P Rules 1987.